IN  THE 


COURT 

FOR 

THE  TMAL  0¥  mPEACHMEXTS, 

AND  THE 

CORRECTION  OF  ERRORS. 

Philip  Van  Cortlandt,  Pierre  Van  Cortlandt,  Catharine  Van 
Wyck,  Gerard  G.  Beekman  and  Cornelia  his  wife,  and  Philip 
S.  Van  Rensselaer  and  Ann  his  wife—- Appellants, 

vs. 

Abraham  I.  Underbill  and  Joshua  Underbill — Respondents. 

— <*-?<+x*o» — 

CASE  ON  THE  PART  OF  THE  APPELLANTS. 
NEW-YORK  : 

PRINTED  BY  C.  S.  VAN  WINKLE, 
No.  101  CJrcenwich-street. 

1818. 


O'O.  ?f 


SEYMOUR  DURST 


When  you  leave,  please  leave  this  book 

Because  it  has  been  said 
"Ever'thing  comes  t'  him  who  waits 

Except  a  loaned  book." 


Avery  Architectural  and  Fine  Arts  Library 
Gift  of  Seymour  B.  Durst  Old  York  Library 


IN  THE 

COURT 

FOR 

THE  TRIAL  OF  IMPEACHMENTS, 

AND  THE 

CORRECTION  OF  ERRORS. 


Philip  Van  Cortlandt,  Pierre  Van  Cortlandt,  Catharine  Van  ~\ 

Wyck,  Gerard  G.  Beekman  and  Cornelia  his  wife,  and/  /t„,„  „  •  •  * 
Philip  S.  Van  Rensselaer  and  Ann  his  wife— Appellants,     >  t^ppellmUs 

Abraham  I.  Underbill  and  Joshua  Underbill — Respondents.  J 


On  an  appeal  from  a  decree  made  by  his  honour  the  Chancellor,  in  an  original 
suit,  wherein  the  respondents  are  complainants,  and  the  appellants  defendants ; 
and  in  a  cross  suit,  wherein  the  appellants  are  complainants,  and  the  respon- 
dents and  others  defendants. 

On  the  21st  day  of  September,  1813,  the  respondents 
filed  their  bill  of  complaint  in  the  court  of  chancery, 
against  the  appellant,  Philip  Van  Cortlandt,  and  Pierre 
Van  Cortlandt,  deceased,  in  substance  as  follows,  viz. 

By  an  indenture  of  lease,  dated  the  18th  day  of  Febru-  <jent»*eo?S- 
ary,  1792,  and  made  between  the  appellant  Philip  Van  the  court  of 
Cortlandt,  and  the  said  Pierre  Van  Cortlandt,  deceased,  hancery* 
of  the  first  part,  and  the  respondents,  and  Robert  Under- 
bill, Thomas  Burling,  and  William  Burling,  of  the  second 
part,  the  lessors  demised  to  the  lessees  a  mill-seat  and 
parcel  of  land  situated  on  Croton  river,  (and  near  the 
mouth  thereof,)  in  Cortlandt  town,  in  the  county  of  West- 
Chester,  containing  seventy  acres,  for  the  term  of  21  years, 
from  the  1st  of  May,  1792,  reserving  the  annual  rent  of 
forty  pounds,  to  commence  on  the  1st  of  November,  1792. 
The  lessors  covenanted,  that  the  lessees  might  erect  or 
build  any  mills,  and  other  buildings,  on  the  premises,  during 
the  continuance  of  the  term.    That  they  would  permit 


the  lessees,  for  building  the  said  mills  and  other  buildings 
on  the  premises,  to  cut  good  and  sufficient  timber  within 
two  miles  of  the  premises,  and  would,  on  request,  point 
out  where  the  same  should  be  cut ;  and,  by  the  said  lease, 
it  was  mutually  agreed  upon  by  the  parties  thereto,  that, 
at  the  expiration  of  the  said  term,  the  mill  or  mills  then 
standing  on  the  premises,  and  whatever  might  appertain 
thereto,  should  be  valued  by  two  persons  indifferently  cho- 
sen by  the  parties,  and,  in  case  of  their  disagreement,  by  a 
third  person,  to  be  chosen  by  the  two,  and  that  the  said 
appraisement  or  valuation  should  be  binding  on  the  6aid 
parties ;  that  the  lessors  should  pay  to  the  lessees  the 
amount  of  the  said  appraisement  or  valuation,  deducting 
only  from  the  same  the  value  of  the  timber  which  the  les- 
sors should  find  as  aforesaid,  as  it  was  when  standing.  That 
all  other  buildings  then  standing  on  the  said  premises 
should,  in  like  manner,  be  appraised  or  valued,  and  the 
amount  thereof  (not  exceeding  two  hundred  pounds)  paid 
to  the  lessees  by  the  lessors ;  and  that  the  lessees  should 
have  the  liberty  and  privilege  of  cutting  and  making  use 
of  any  trees  on  the  premises  (except  locust  and  red  ce- 
dar) for  firewood,  to  be  used  by  the  lessees  on  the  said 
premises  ;  and,  also,  that  the  materials  mentioned  in  a 
schedule  to  be  annexed  to  the  said  lease  should,  or  might, 
be  used  by  the  lessees,  but  should  be  left  on  the  premises, 
at  the  expiration  of  the  said  term,  for  the  lessors,  being 
their  property. 

Owing  to  some  accident,  or  mistake,  the  respondents 
did  not  execute  the  lease,  yet  they  accepted  the  same 
with  the  other  lessees,  and  were  equally  concerned  there- 
in, and  were  so  considered  by  them,  and  the  appellant 
Philip  Van  Cortlandt,  and  the  said  Pierre  Van  Cortland t, 
deceased. 

No  schedule  was  annexed  to  the  lease,  nor  was  any 
schedule  made  of  the  materials  to  be  used  by  the  les- 
sees, and  left  on  the  premises  as  the  property  of  the  les- 


5 


sors ;  those  materials  were  of  small  value,  and  were  all 
(except  such  as  were  consumed  by  use)  left  on  the  demised 
premises. 

The  respondents,  and  Robert  Underhill,  Thomas  Bur- 
ling, and  William  Burling,  at,  or  shortly  after,  the  com- 
mencement of  the  term,  entered  on  and  took  possession 
of  the  premises,  erected  a  mill  thereon,  built  a  dam  across 
Croton  river,  a  dwelling-house,  out-houses,  barns,  and 
other  buildings  necessary  for  their  accommodation  and 
the  prosecution  of  their  business,  and  laid  out  large  sums 
of  money  in  building  and  erecting  the  same. 

The  respondents  and  their  co-lessees  paid  the  rent  re- 
served up  to  the  30th  of  November,  1795. 

The  appellant,  Philip  Van  Cortlandt,  applied  to  the  res- 
pondents and  their  co-lessees,  about  the  last  of  November, 
1795,  for  an  underlease  of  a  part  of  the  demised  premises 
adjoining  Croton  river,  and  the  privilege  of  using  part  of  the 
water  collected  for  their  mill,  for  the  purpose  of  building  a 
mill  to  manufacture  flour,  and  they,  by  an  agreement  in  wri- 
ting, dated  the  30th  of  November,  1795,  demised  to  the 
appellant,  Philip  Van  Cortlandt,  until  the  expiration  of  the 
said  lease  to  them,  the  privilege  of  building  a  merchant 
mill  of  two  run  of  stones  four  and  an  half  feet  diameter, 
with  two  over-shot  water  wheels,  and  necessary  machi- 
nery ;  the  north-west  corner  of  the  said  mill  to  stand  on 
a  certain  marked  rock  in  the  wall  by  the  river  side,  south 
of  the  saw-mill  belonging  to  the  respondents  and  their  co- 
lessees,  and  from  thence  extending  easterly  and  southerly, 
together  with  the  privilege  of  making  a  road  up  the  hill 
to  the  new  post-road,  and  of  erecting  a  building,  for  the 
only  purpose  of  storing  barrels,  on  the  west  side  of  the 
river  adjoining,  and  on  the  north  or  east  side  of  a  certain 
black-smith  shop,  and  of  using  water  for  two  run  of  stones, 
to  be  taken  from  the  sluices  or  trunk  for  conveying  wa- 
ter ;  for  which  privileges,  together  with  others  granted 
to  the  appellant,  Philip  Van  Cortlandt,  he  agreed  to  pay 


0 


them  annually  one  hundred  dollars  for  the  residue  of  the 
term. 

Immediately,  or  shortly  after  the  execution  of  the  6aid 
agreement,  the  appellant,  Philip  Van  Cortlandt,  entered 
upon  the  demised  premises,  and  erected  a  mill,  and  en- 
joyed the  privileges  aforesaid  until  the  expiration  of  the 
term  therein  mentioned.  The  appellant,  Philip  Van  Cort- 
landt, agreed  with  the  respondents  and  their  co-lessees, 
that  the  yearly  rent  to  hecome  due  from  him  under  the 
last-mentioned  agreement,  should  be  set  off  against,  and 
extinguish,  the  annual  rent  of  forty  pounds,  reserved  by 
the  said  lease  before  mentioned. 

The  respondents  and  their  co-lessees  settled  the  rent, 
under  such  agreement,  with  the  appellant,  Philip  Van 
Cortlandt,  up  to  the  20th  of  November,  1799,  and  have 
in  their  hands  his  receipt  for  the  same  ;  since  which  time 
they  have  neither  paid  rent  to  the  appellant,  Philip  Van 
Cortlandt,  and  the  said  Pierre  Van  Cortlandt,  nor  have 
they  received  any  from  the  appellant,  Philip  Van  Cort- 
landt ;  but  it  was  always  considered  that  one  was  a  set-off 
against  the  other,  which  the  respondents  supposed  was 
understood  and  concurred  in  by  the  said  Pierre  Van 
Cortlandt,  deceased. 

On  the  5th  February,  1 799,  Thomas  Burling  and  Wil- 
liam Burling,  by  a  release  dated  on  that  day,  in  considera- 
tion of  one  dollar,  granted,  bargained,  sold,  and  forever 
quit  claimed  unto  Robert  Underhill  and  the  respon- 
dents, all  their  rights  and  interest  in  the  said  premises, 
demised  to  them  and  their  co-lessees  as  aforesaid,  and  the 
mills,  stores,  dwellings,  and  improvements  thereon. 

Robert  Underhill,  by  a  release  dated  the  1st  day  of  May, 
1301,  in  consideration  of  six  thousand  dollars,  bargained, 
sold,  released,  and  transferred  unto  the  respondent,  Abra- 
ham I.  Underhill,  all  his  right  and  interest  in  the  said  pre- 
mises, demised  to  the  said  Robert  Underhill  and  his  co- 
lessees  as  aforesaid,  together  with  the  mills,  raceway, 


7 


dams,  stores,  dwellings,  and  all  other  improvements  there- 
unto belonging  or  appertaining. 

The  respondent,  Abraham  I.  Undcrhill,  by  an  indenture 
of  bargain  and  sale,  dated  2d  May,  1804,  in  consideration 
of  three  thousand  dollars,  granted,  bargained,  sold,  re- 
leased, assigned,  transferred,  and  forever  quit  claimed  un- 
to the  respondent,  Joshua  Underbill,  the  one  equal  sixth 
part  of  all  the  said  premises  demised  to  the  respondents 
and  their  co-lessees  as  aforesaid,  together  with  one  equal 
sixth  part  of  the  mills,  raceway,  dams,  stores,  dwellings, 
and  other  improvements  on  the  said  premises,  together 
with  the  one  equal  sixth  part  of  the  appurtenances,  privi- 
leges, &c.  thereun.o  belonging,  the  privileges  of  a  mill 
theretofore  granted  to  the  appellants,  Philip  Van  Cort- 
landt,  and  the  improvements  made  by  him  and  Jesse  Field 
thereon,  excepted. 

The  last  mentioned  release  was  intended,  in  connection 
with  the  other  conveyances  and  assignments  from  the 
other  lessees,  to  vest  in  the  respondents  equally  the  whole 
estate  and  interest  in  the  said  demised  premises,  and  there- 
fore the  respondents  allege,  that  by  virtue  of  the  said  lease, 
and  the  other  releases  and  conveyances  above  mentioned, 
they  became  jointly  and  equally  interested  in,  and  enti- 
tled to,  the  said  demised  premises,  and  to  all  the  benefit, 
profit,  and  advantage,  to  arise  therefrom  or  thereout. 

To  prevent  any  questions  that  might  arise  between  the 
respondents,  respecting  the  same,  they  made  and  executed 
a  memorandum  in  writing,  dated  the  19th  April,  180G, 
whereby  it  was  agreed,  that  the  respondents  were  equally 
-concerned  in  the  said  mills  and  improvements. 

Before  the  expiration  of  the  term  granted  by  the  said 
lease,  the  respondents  proposed  to  the  appellant,  Philip 
Van  Cortlandt,  and  the  said  Pierre  Van  Cortlandt,  de- 
ceased, that  as  there  was  an  omission  in  the  lease,  in  not 
pointing  out  the  manner  of  ascertaining  the  value  of  the 
timber  used  by  the  lessees,  in  the  mill  and  buildings  erect- 


ed  by  them  according  to  the  terms  of  the  lease,  they  should 
enter  into  a  written  agreement,  that  the  same  should  be 
appraised  and  valued,  by  the  persons  chosen  to  appraise 
and  value  the  mills  and  other  buildings,  improvements  and 
appurtenances,  in  pursuance  of  the  agreement  for  that  pur- 
pose in  the  said  lease,  or  in  such  other  equitable  way  as 
should  be  agreed  upon  ;  with  which  proposition  the  appel- 
lant, Philip  Van  Cortlandt,  and  the  said  Pierre  Van  Cort- 
landt,  deceased,  refused  to  comply. 

The  appellant,  Philip  Van  Cortlandt,  and  the  said  Pierre 
Van  Cortlandt,  deceased,  or  either  of  them,  did  not  furnish 
the  respondents  or  their  co-lessees,  or  either  of  them,  a 
schedule  containing  the  articles  left  by  them  on  the  pre- 
mises, at  the  time  of  the  execution  of  the  lease,  or  at  any 
other  time  ;  but  on  or  about  the  28th  of  January,  1813,  re- 
quested the  respondents  to  furnish  them  with  a  schedule  of 
the  articles  left  by  them  on  the  premises  when  the  lease 
was  given ;  in  compliance  with  which  request,  the  respon- 
dent, Abraham  I.  Underbill,  did,  on  the  30th  of  January, 
1813,  make  a  schedule  of  such  materials  as  were  left  on 
the  premises ;  (which  schedule  is  particularly  set  forth  in 
the  bill ;)  the  schedule  was  directed  to  Pierre  Van  Cort- 
landt, deceased,  and  the  appellant,  Philip  Van  Cortlandt, 
and  delivered  to  Theodorus  C  Van  Wyck,  their  attorney 
and  authorized  agent,  on  the  day  it  hears  date.    All  the 
articles  left  on  the  premises  by  the  appellant,  Philip  Van 
Cortlandt,  and  the  said  Pierre  Van  Cortlandt,  deceased, 
except  such  as  were  consumed  in  the  usage,  were  left  there 
at  the  time  possession  was  delivered  to  the  appellant, 
Philip  Van  Cortlandt,  and  the  said  Pierre  Van  Cortlandt, 
deceased,  except  such  articles  as  were  taken  off  the  pre- 
mises, by  them,  or  their  order,  or  agents.  The  respondents 
and  their  co-lessees  never  used  the  said  articles  for  any 
purpose  off  the  demised  premises,  but  the  same  were  used 
with  the  same  care  as  if  they  had  been  their  own  private 
property. 


11 


mills  in  the  possession  of  the  appellant,  Philip  Van  Corl- 
landt  and  John  F.  Mailman,  built  on  the  premises,  underlet 
as  aforesaid,  and  included  the  valuation  in  the  same  report; 
but  the  respondents  claim  no  interest  therein,  and  the  same 
was  not  made  at  their  request. 

At  the  time  the  appraisers  were  on  the  premises,  and 
engaged  in  making  the  valuation,  the  respondents  proposed 
to  the  appellant,  Philip  Van  Cortlandt,  and  the  said  Pierre 
Van  Cortlandt,  deceased,  or  one  of  them,  that  the  ap- 
praisers should  also  appraise  the  value  of  the  timber  used 
by  the  said  lessees  in  erecting  the  mills  and  other  buildings 
on  the  said  premises ;  that  the  value  thereof  he  deducted 
from  the  sum  at  which  the  mills  should  be  valued  by  the 
said  appraisers,  or  otherwise  paid  and  satisfied  by  the  res- 
pondents; but  the  said  proposal  was  disagreed  to  by  the 
said  Pierre  Van  Cortlandt,  deceased,  and  the  appellant, 
Philip  Van  Cortlandt,  or  their  agents,  who  attended. 

On  the  said  valuation  and  appraisement  of  the  said  mills, 
and  whatever  appertained  thereto,  and  the  buildings  stand- 
ing on  the  said  premises,  being  made  and  delivered  as 
aforesaid,  the  respondents  offered  to  the  said  Pierre  Van 
Cortlandt,  deceased,  and  the  appellant,  Philip  Van  Cort- 
landt, to  deliver  up  the  said  premises,  in  case  they  would  pay 
the  amount  of  the  appraisement ;  and  offered  to  allow  them 
two  hundred  dollars  for  the  timber  used  in  building  the  said 
mills,  and  other  buildings,  which  sum,  they  believe,  was  the 
full  value  thereof,  or  more  ;  but  which  offer  was  refused. 
And  notwithstanding  the  said  offer  has  been  repeatedly 
made,  at  different  times  since,  the  same  has  always  been 
refused  ;  and  the  appellant,  Philip  Van  Cortlandt,  and  the 
said  Pierre  Van  Cortlandt,  deceased,  have  hitherto  refused 
to  pay  the  amount  of  the  appraisement,  or  any  part  thereof, 
to  the  respondents. 

Although  the  respondents  were  advised  by  their  counsel, 
that  they  had  a  good  right  to  hold  possession  of  the  said 


10 


This  is  to  certify  all  whom  it  may  or  doth  concern, 
that  we,  the  subscribers,  chosen  appraisers  according  to  the 
terms  and  conditions  of  a  certain  lease,  given  by  Pierre  Van 
Cortlandt,  and  Philip  Van  Cortlandt,  of  the  town  of  Cort- 
landt,  to  Robert  Underbill,  Abraham  Underbill,  Joshua  Un- 
derbill, Thomas  Burling,  and  William  Burling,  bearing  date 
the  18th  of  February,  1  7G2,  have  examined  the  mills,  and 
whatever  appertains  thereto,  made  by  virtue  of  the  said  lease 
by  the  lessees,  and  now  owned  by  Abraham  I.  Underbill 
and  Joshua  Undcrhill,  two  of  the  lessees,  aforesaid,  and 
having  heard  the  allegations  of  the  parties,  and  duly  con- 
sidered the  whole  subject,  agreeable  to  the  conditions  of  the 
•aid  lease,  do  report,  that  according  to  our  best  judgment 
and  belief,  the  said  mills,  and  whatever  appertains  thereto, 
belonging  to  the  said  Abraham  I.  Undcrhill  and  Joshua 
Undcrhill,  are  worth  eighteen  thousand  dollars  lawful 
money  of  the  State  of  New-York  ;  and  that  the  value  of  all 
other  buildings,  not  appertaining  to  mills,  erected  by  the 
lessees,  and  standing  on  the  premises,  and  owned  by  the  de- 
fendants, exclusive  of  the  timber  furnished  by  the  lessees  in 
making  the  same  ;  and  also,  exclusive  of  theV ranklin  stove 
in  the  house,  and  loose  boards  on  the  premises,  and  such 
other  articles  as  are  generally  considered  moveables,  are 
worth  five  hundred  dollars  lawful  money,  as  aforesaid  ;  and 
in  consideration  of  all  the  above,  we  have  hereunto  put 
our  hands  and  seals,  this  8th  day  of  July,  1813. 

Which  report  was  signed  and  scaled,  by  Samuel  Mott, 
Nathan  Anderson,  and  David  Lydig;  and  one  copy  thereof, 
signed  and  sealed  as  aforesaid,  was,  on  or  about  the  date 
thereof,  delivered  to  the  said  Pierre  Van  Cortlandt,  de- 
ceased, or  his  agent ;  another  copy,  signed  and  sealed  as 
aforesaid,  was,  on  or  about  the  date  thereof,  delivered  to 
the  appellant,  Philip  Van  Cortlandt ;  and  another  copy  to 
the  respondents. 

The  said  appraisers,  at  the  request  of  the  appellant, 
Philip  Van  Cortlandt,  or  some  other  person,  appraised  the 


15 


The  appellant,  Philip  Van  Cortlandt,  and  the  said 
Pierre  Van  Cortlandt,  deceased,  do  not  admit  that  the  said 
paper  contains  a  list  of  the  articles  left  by  them  upon  the 
premises,  and  intended  to  have  been  included  in  the  sche- 
dule agreed  to  have  been  annexed  to  the  lease. 

The  appellant,  Philip  Van  Cortlandt,  and  the  said  Pierre 
Van  Cortlandt,  deceased,  admit,  that  the  respondents  and 
their  co-lessees,  immediately,  or  shortly  after  the  com- 
mencement of  the  term,  took  possession  of  the  premises, 
and  erected  thereon  a  mill,  dwelling-houses,  out-houses, 
a  barn,  and  other  buildings  necessary  for  their  accommo- 
dation, and  the  prosecution  of  their  business,  and  a  dam 
across  Croton  river,  as  alleged  in  the  bill ;  and  they  admit 
that  the  respondents  necessarily  expended  large  sums  of 
money  in  building  and  erecting  the  dam,  mills,  and  other 
buildings  ;  but  the  sums  so  laid  out  by  the  respondents 
and  their  co-lessees  amounted  to  a  much  less  sum  than 
the  respondents  have  lately  pretended. 

The  appellant,  Philip  Van  Cortlandt,  and  the  said  Pierre 
Van  Cortlandt,  deceased,  admit  that  the  respondents  and 
their  co-lessees  paid  all  the  rents  reserved  by  the  lease, 
until  the  30th  day  of  November,  1799  ;  and  that  the  ap- 
pellant, Philip  Van  Cortlandt,  on  or  about  the  time  ex- 
pressed in  the  bill,  applied  to  the  respondents  and  their 
co-lessees  to  take  an  underlease  of  them,  of  such  part  of 
the  premises,  for  the  residue  of  the  term,  and  for  such  pur- 
poses, and  with  such  privileges,  as  is  alleged  in  the  bill  ; 
and  they  further  admit,  that  the  respondents  and  their  co« 
lessees,  on  the  application  of  the  appellant,  Philip  Van 
Cortlandt,  by  such  agreement  as  is  set  forth  in  the  bill,  did 
make  such  demise  and  agreement  with  the  appellant,  Phi- 
lip Van  Cortlandt,  and  for  such  terms  as  are  alleged  in  the 
bill ;  and  that  the  appellant,  Philip  Van  Cortlandt,  by  the 
said  agreement,  agreed  to  pay  them  annually  100  dollars 
for  the  said  privileges  during  the  residue  of  the  said  term. 


16 


The  appellant,  Philip  Van  Cortlandt,  and  the  said  Pierre 
Van  Cortlandt,  deceased,  further  admit,  that  the  appel- 
lant, Philip  Van  Cortlandt,  entered  upon  the  premises  de- 
mised to  him,  and  built  a  mill,  (with  Jesse  Field.)  and 
used  and  enjoyed  the  privileges  mentioned  in  the  under- 
lease, until  the  expiration  of  the  lease  made  to  the  res- 
pondents and  their  co-lessees. 

The  mill  built  by  the  appellant,  Philip  Van  Cortlandt, 
and  Jesse  Field,  was  built  partly  upon  the  premises  under- 
let as  aforesaid,  and  partly  upon  other  lands  belonging  to 
the  6aid  Pierre  Van  Cortlandt,  deceased. 

The  appellant,  Pbilip  Van  Cortlandt,  and  the  said  Pierre 
Van  Cortlandt,  deceased,  further  admit,  that  the  appel- 
lant, Philip  Van  Cortlandt,  agreed  with  the  respondents 
and  their  co-lessees,  at  the  time  of  executing  the  under- 
lease, that  the  rent  reserved  thereby  should  be  set  off 
against  the  rent  reserved  by  the  first  mentioned  lease,  the 
rents  being  equal. 

The  appellant,  Philip  Van  Cortlandt,  says,  that  the  rent 
reserved  by  the  underlease  to  the  respondents  and  their 
co-lessees,  was  not  the  only  consideration  for  the  demise 
contained  in  the  underlease  ;  but,  in  further  consideration 
for  such  demise,  the  appellant,  Philip  Van  Cortlandt,  by 
the  said  underlease,  demised  to  the  respondents  and  their 
co-lessees,  during  the  residue  of  the  term  granted  by  the 
original  lease,  about  twenty-five  acres  of  good  pasture 
and  meadow  land  adjoining  the  mill,  worth,  at  least,  30 
dollars  per  annum.  The  respondents  and  their  co-lessees 
immediately,  or  shortly  after  the  date  of  the  underlease, 
took  possession  of  the  said  land,  and  held  the  same  until 
the  expiration  of  the  term. 

The  appellant,  Philip  Van  Cortlandt,  not  only  made  the 
last  mentioned  demise,  and  consented  to  pay  the  rent  re- 
served by  the  underlease,  but  he  and  the  said  Jesse  Field, 
(who  were  connected  together  in  the  business  of  manu- 
facturing flour,)  having  occasion  for  an  additional  quan- 


13 


as  the  court  should  direct;  and  that  the  appellant,  Philip 
Van  Cortlandt,  and  the  said  Pierre  Van  Cortkndt,  de- 
ceased, may  pay  to  the  respondents  their  costs  in  that  be- 
half to  be  taxed  ;  and  that  the  respondents  might  have  such 
other  relief  as  should  seem  proper  and  meet. 

On  the  10th  day  of  January,  1814,  the  appellant,  Philip 
Van  Cortlandt,  and  the  said  Pierre  Van  Cortlandt,  de- 
ceased, filed  their  answer  to  this  bill  as  in  substance  follows, 
to  wit : 

The  appellant,  Philip  Van  Cortlandt,  and  the  said  Pierre  Answer  of 

the  appellant 

Van  Cortlandt,  deceased,  admit  the  execution  of  the  lease  PhiliP  Van 

Cortlandt, 

mentioned  in  the  bill ;  and  that  the  contents  of  the  lease  ^  vg™ 
are  substantially  sych  as  are  set  forth  in  the  bill.  ceased,  "to 

They  further  admit,  that  the  respondents  did  not  execute  ents'  original 
the  lease,  and  that  they  accepted  the  same  with  the  other  court  of 

cbancery 

lessees,  and  were  eo^ally  concerned  therein,  and  were 
so  considered  by  the  appellant,  Philip  Van  Cortlandt,  and 
the  said  Pierre  Van  Cortlandt,  deceased,  and  (as  they  be- 
lieve) by  the  said  Robert  Underhill,  Thomas  Burling,  and 
William  Burling. 

The  appellant,  Philip  Van  Cortlandt,  and  the  said  Pierre 
Van  Cortlandt,  deceased,  further  admit,  that,  to  the  best  of 
their  knowledge,  recollection,  and  belief,  no  schedule  was 
made  out,  and  annexed  to  the  lease  ;  and  that  no  schedule  or 
memorandum  was  made,  to  their  knowledge  or  belief,  of  the 
articles  or  materials  mentioned  in  the  said  lease,  to  be  used 
by  the  lessees,  and  to  be  left  on  the  premises  at  the  expi- 
ration of  the  term  for  the  lessors,  being  their  property. 

The  appellant,  Philip  Van  Cortlandt,  and  the  said  Pierre 
Van  Cortlandt,  deceased,  have  neither  of  them,  to  their 
knowledge,  recollection,  or  belief,  made  any  memoran- 
dum of  the  said  articles,  nor  do  they  know  whether  any 
was  made  by  any  other  person  ;  they  believe  and  admit, 
that  the  said  articles  and  materials  were  of  small  value, 
and  suppose  and  believe,  that  the  articles  intended  to  be 
inserted  in  such  schedule,  were  certain  articles  of  small 
value,  then  in  use,  in  and  about  certain  mills  then  stand- 


J 1 


ing  upon  the  said  premises  ;  and  which  mills  were  demised, 
with  ihe  residue  of  the  said  premises,  to  the  respondents 
and  their  co-lessees,  by  the  said  lease. 

The  appellant,  Philip  Van  Cortlandt,  and  the  said  Pierre 
Van  Cortlandt,  deceased,  do  not  know,  and  cannot  an- 
swer, whether  all  the  articles  or  materials  referred  to  in 
the  lease,  which  were  not  consumed  by  use,  were  left  on 
the  premises  at  the  expiration  of  the  term,  for  their  use, 
as  alleged  in  the  bill ;  they  admit,  that  neither  of  them 
furnished  to  the  respondents  and  their  co-lessees,  or  either 
of  them,  a  schedule  containing  a  list  of  the  articles  left 
on  the  demised  premises  at  the  time  the  said  lease  was 
executed,  or  at  any  other  time. 

They  further  admit,  that,  at  or  about  the  time  mention- 
ed in  the  bill,  they  requested  the  respondents  to  furnish 
them  with  a  schedule,  or  list,  of  the  articles  left  on  the 
premises  at  the  time  the  lease  was  executed ;  they  deny 
that,  to  their  knowledge,  information,  or  belief,  the  res- 
pondent, Abraham  [.  Underhill,  at  or  about  the  time  ex- 
pressed in  the  bill,  or  at  any  other  time,  delivered  to 
Theodorus  C.  Van  Wyck  (whom  they  admit  to  have  been 
their  a^nt  or  attorney)  a  schedule,  or  other  paper,  in  the 
words,  or  to  the  precise  effect,  set  forth  in  the  bill. 

On  or  about  the  30th  day  of  January,  1813,  the  res- 
pondent, Abraham  I.  Underhill,  delivered  to  the  said  The- 
odorus C.  Van  Wyck,  a  paper  writing,  subscribed  by  the 
respondent,  Abraham  I.  Underhill,  and  directed  to  the 
appellant,  Philip  Van  Cortlandt,  and  the  said  Pierre  Van 
Cortlandt,  deceased. 

[This  paper  is  set  forth  in  the  answer  in  hac  verba,  and 
purports  to  be  in  answer  to  a  request  made  by  the  appel 
lant,  Philip  Van  Cortlandt,  and  the  said  Pierre  Van  Cort- 
landt, deceased,  on  the  28th  of  January,  then  instant,  to 
be  furnished  with  a  schedule  of  the  property  on  the  de- 
mised premises  when  the  lessees  took  possession.] 


17 


tity  of  water  for  the  use  of  the  mill,  erected  by  them,  by 
virtue  of  the  under  lease,  they  paid  the  respondents,  and 
Robert  Underhill,  1000  dollars  on  the  2d  day  of  Novem- 
ber, 1801,  for  the  privilege  of  using,  (under  certain  restric- 
tions) during  the  residue  of  the  said  term,  water  sufficient  to 
carry  two  pair  of  mill-stones,  with  the  machinery  in  the 
said  mill. 

By  the  under  lease,  it  is  covenanted  and  agreed,  that 
the  said  dam  and  raceway  should  be  maintained  and  kept 
in  repair,  and  certain  improvements  made  upon  the  pre- 
mises, at  the  joint  expense  of  the  appellants,  Philip  Van 
Cortlandt,  and  the  respondents,  and  their  co-lessees,  to  be 
borne  in  the  proportions  set  forth  in  the  under  lease,  and 
from  the  30th  day  of  November,  1795,  (the  date  of  the  un- 
der lease,)  to  the  said  2d  day  of  November,  1301,  the  said 
dam  and  raceway  were  maintained  and  repaired  at  the 
joint  expense  of  the  respondents,  and  their  co-lessees,  and 
the  appellant,  Philip  Van  Cortlandt,  or  persons  holding 
under  him,  according  to  the  rate  contained  in  the  under 
lease  ;  and  from  the  2d  day  of  November,  1801,  until  the 
end  of  the  term,  the  said  dam  and  raceway  were  maintain- 
tained,  and  repaired,  at  the  joint  and  equal  expense  of  the 
respondents,  and  Robert  Underhill,  or  some  of  them,  and 
the  appellant,  Philip  Van  Cortlandt,  and  Jesse  Field,  or 
the  persons  who  have  since  held  and  occupied,  under  the 
appellant,  Philip  Van  Cortlandt,  the  mill  built  on  the  said 
premises,  underlet  as  aforesaid. 

The  respondents  claim,  and  for  some  years  have  claim- 
ed, to  be  jointly  and  equally  entitled  to,  and  interested  in, 
the  said  premises,  (to  the  exclusion  of  their  co-lessees,) 
and  to  be  entitled  to  all  the  benefit  and  advantage  ari- 
sing, or  to  arise  therefrom,  as  well  as  to  the  rents  and 
other  profits  arising  and  reserved  by  the  under  lease  ;  and 
they  claim  to  be  so  interested  and  entitled,  (as  the  appel- 
lant, Philip  Van  Cortlandt,  and  the  said  Pierre  Van  Cort- 
landt, deceased,  are  informed,  and  believe  to  be  true)  by 

3 


18 


virtue  of  certain  quit-claims,  deeds,  or  other  writings,  al- 
leged to  have  been  made  and  executed  by  and  between  the 
respondents  and  their  co-lessees ;  and  from  all  the  appellant, 
Philip  Van  Cortlandt,  and  the  said  Pierre  Van  Cort- 
landt,  deceased,  have  heard  they  believe  it  highly  proba- 
ble the  respondents  are  in  fact  so  interested  and  entitled  ; 
but  whether  they  be  jointly  and  equally  interested,  to  the 
exclusion  of  their  co-lessees,  they  do  not  know,  except 
from  hearsay,  and  the  declaration  of  the  respondents,  and 
are  entirely  strangers  to  the  agreements,  deeds,  &c.  alleged 
in  the  bill  to  have  been  entered  into,  and  executed  by  and 
between  the  respondents,  and  by  and  between  them  and 
their  co-lessees. 

The  said  Pierre  Van  Cortlandt,  deceased,  by  the  said 
answer,  denies  that,  to  his  knowledge,  recollection,  or  be- 
lief, the  respondents,  previous  to  the  expiration  of  the  said 
term,  proposed  that  the  timber,  used  by  the  respondents 
and  their  co-lessees,  in  the  miil  and  buildings,  erected  by 
them  on  the  premises,  under  the  lease,  should  be  appraised 
and  valued  by  the  persons,  to  be  chosen  to  appraise  the 
mills,  buildings,  and  appurtenances,  pursuant  to  the  lease  ; 
or  to  ascertain  the  value  of  the  said  timber  in  any  other 
equitable  way,  to  be  agreed  upon  between  them  :  or  that 
he,  or  to  his  knowledge,  the  appellant,  Philip  Van  Cort- 
landt, refused  to  comply  with,  or  agree  to,  such  proposition. 

The  appellant,  Philip  Van  Cortlandt,  says,  that  some 
short  time  before  the  expiration  of  the  said  lease,  the  res- 
pondent, Abraham  I.  Underhill,  called  upon  him,  and  pro- 
ducing a  paper  writing,  which  he  represented  as  being 
some  agreement  touching  the  premises,  he  requested  him  . 
to  execute  it ;  that  he  declined  to  execute  it,  and,  to  the 
best  of  his  knowledge,  he  did  not  read  it ;  and  that  he  doth 
not  know  the  contents  thereof;  and  if  the  said  paper  wri- 
ting contained  such  proposition  or  agreement,  then  he  re- 
fused to  comply  therewith  ;  and  if  the  said  paper  writing 
did  not  contain  such  proposition,  then  that  he  hath  not  re- 


19 


fused  to  comply  with  such  proposition  or  agreement,  and 
that  the  respondent,  Abraham  I.  Uunderhill,  hath  not,  to 
his  knowledge  or  recollection,  at  any  other  time,  or  in  any 
other  manner,  or  on  any  other  occasion,  made  him  any 
such  proposal,  touching  the  valuation  of  the  timber,  as  is 
set  forth  in  the  bill ;  nor  hath  he  refused  to  comply  with,  or 
agree  to,  any  such  proposal  or  agreement,  or  any  other 
proposal  or  agreement,  touching  the  valuation  of  the  tim- 
ber, otherwise  than  last  above  mentioned. 

The  appellant,  Philip  Van  Cortlandt,  and  the  said  Pierre 
Van  Cortlandt,  deceased,  admit  that  the  term  expressed 
in  the  lease,  to  the  respondents  and  their  co-lessees,  ex- 
pired on  the  1st  day  of  May,  1813. 

The  appellant,  Philip  Van  Cortlandt,  and  the  said  Pierre 
Van  Cortlandt,  deceased,  and  the  respondents,  did  not 
mutually  choose  Nathan  Anderson  and  Samuel  Mott,  ac- 
cording to  the  terms  of  the  lease,  to  appraise  and  value 
the  mills,  and  whatever  appertained  thereto,  and  the  other 
buildings  standing  upon  the  premises,  as  alleged  in  the 
bill :  that  is  to  say,  neither  Nathan  Anderson  nor  Samuel 
Mott  was  chosen  by  them  jointly. 

Nathan  Anderson,  and  (as  they  believe)  Samuel  Mott, 
were  appointed  in  the  following  manner,  that  is  to  say  : 

The  appellant,  Philip  Van  Cortlandt,  and  the  said  Pierre 
Van  Cortlandt,  deceased,  mistaking  their  rights  touching 
the  valuation,  covenanted  by  the  lease,  to  be  made  of  the 
mills  and  appurtenances,  and  other  buildings ;  and  sup- 
posing that  the  legal  and  true  intent  and  meaning  of  the 
covenant  for  that  purpose  contained  in  the  lease,  was, 
that  the  two  persons,  to  be  chosen  and  appointed  to  make 
such  valuation  and  appraisement,  should  be  chosen  by  each 
of  the  parties  separately,  and  not  by  the  parties  jointly ; 
that  is  to  say,  that  they  should  choose  one  appraiser,  and 
the  respondents,  or  they  and  their  co-lessees,  should 
choose  another,  instead  of  mutually  and  jointly  choosing 
the  two  appraisers,  as  they  are  now  advised,  and  submit  is 


20 


the  true  construction  of  the  covenant.  They  did,  on  the 
23th  day  of  April,  1813,  appoint  Anderson  to  be  such  ap- 
praiser, on  their  part,  and  delivered  to  him  a  paper  wri- 
ting, signed  by  them,  of  the  tenor  following,  viz. 

"Whereas  we,  the  subscribers,  granted  a  certain  lease  to 
Robert  Underbill,  Abraham  Underhill,  Joshua  Underhill, 
Thomas  Burling,  and  William  Burling,  of  all  that  certain 
mill-place,  and  pieces  of  land  on  each  side  of  Croton  river, 
near  the  mouth,  dated  the  eighteenth  day  of  February,  in 
the  year  one  thousand  seven  hundred  and  ninety-two,  which 
said  lease  expires  on  the  first  day  of  May,  in  the  year  one 
thousand  eight  hundred  and  thirteen.  We,  therefore,  ac- 
cording to  the  requisition  of  the  said  lease,  have  nominated, 
constituted,  and  appointed,  and  hereby  do  nominate,  con- 
stitute, and  appoint,  Nathan  Anderson,  of  the  town  of  Cort- 
landt,  to  appraise  or  value  the  mill,  or  mills,  and  whatever 
may  appertain  thereto,  and  all  other  buildings  that  shall 
be  standing  on  the  said  premises,  at  the  expiration  of  the 
said  lease.  Town  of  Cortlandt,  April  28th,  1813.  Pierre 
Van  Cortlandt.    Philip  Van  Cortlandt." 

On  the  28th  day  of  April,  1813,  the  appellant,  Philip 
Van  Cortlandt,  and  the  said  Pierre  Van  Cortlandt,  de- 
ceased, caused  to  be  delivered  to  the  respondent,  Abraham 
I.  L>  Jerhill,  a  written  notice,  signed  by  them,  of  the  te- 
nor following,  viz. 

"  Town  of  Cortlandt,  April  23th,  1813. 

Gentlemen, 

Please  to  take  notice,  that  according  to  the  requisi- 
tion of  a  certain  lease,  dated  the  13th  day  of  February, 
1792,  of  all  that  certain  mill-place,  and  pieces  of  land  on 
each  side  of  Croton  river,  near  the  mouth,  granted  by 
Pierre  Van  Cortlandt,  and  Philip  Van  Cortlandt,  to  Robert 
Underhill,  Abraham  Underhill,  Joshua  Underhill,  Thomai 
Burling,  and  William  Burling,  we,  the  grantors  of  the 
said  lease,  have  appointed  Nathan  Anderson,  of  the  town 


21 


of  Cortlandt,  to  appraise  or  value  the  mill,  or  mills,  and 
whatever  may  appertain  thereto,  and  all  other  buildings 
that  shall  be  standing  on  the  said  premises,  at  the  expira- 
tion of  the  said  lease. — Pierre  Van  Cortlandt,  Philip  Van 
Cortlandt. — To  Robert  Underhill,  Abraham  Underhill, 
Joshua  Underhill,  Thomas  Burling,  and  William  Burling." 

On  the  1st  day  of  May,  1813,  the  appellant,  Philip  Van 
Cortlandt,  received  a  notice  from  the  respondents,  or  one 
of  them,  or  from  some  person  acting  on  their  behalf,  of  the 
tenor  following,  viz. 

"Cortlandt  Town,  5th  mo.  1st,  1813. 
Respected  Ffiends, 

According  to  the  requisition  of  a  ce  rtain  lease,  dated 
the  18th  day  of  February,  1792,  of  all  that  certain  mill- 
place,  and  pieces  of  land  on  each  side  of  Croton  river, 
near  the  mouth,  granted  by  Pierre  Van  Cortlandt,  and 
Philip  Van  Cortlandt,  to  Robert  Underhill,  Abraham  Un- 
derhill, Joshua  Underhill,  Thomas  Burling,  and  William 
Burling,  we,  the  present  holders  and  owners  of  the  said 
leased  premises,  have  appointed  Samuel  Mott,  flour  mer- 
chant, of  the  city  of  New- York,  to  appraise  or  value  the 
mills,  and  whatever  may  appertain  thereto,  and  all  other 
buildings  now  standing  on  the  said  premises,  agreeable  to 
the  said  lease.- — Abraham  I.  Underhill,  Joshua  Underbill. 
— To  Pierre  Van  Cortlandt,  Philip  Van  Cortlandt." 

The  appellant,  Philip  Van  Cortlandt,  and  the  said  Pierre 
Van  Cortlandt,  deceased,  did  not  object  to  Samuel  Mott, 
as  one  of  the  appraisers,  because  they  supposed  they  were 
not  entitled  to  do  so  :  the  said  Pierre  Van  Cortlandt  sayp, 
that  had  he  known  he  could  legally  have  objected  to  Sa- 
muel Mott,  as  one  of  the  appraisers,  he  would  have  done 
so,  and  would  not  have  consented  to  his  being  one  of  the 
appraisers  :  the  appellant,  Philip  Van  Cortlandt,  says.  that. 


22 


had  he  known  he  could  legally  have  objecled  to  Samue 
Mott,  as  one  of  the  appraisers,  he  would  have  done  so  ; 
and  believes  he  would  have  adhered  to  such  objection. 

The  appellant,  Philip  Van  Cortlandt,  and  the  said  Pierre 
Van  Cortlandt,  deceased,  admit,  that  Nathan  Anderson 
and  Samuel  Mott  met  upon  the  premises  for  the  purpose, 
as  they  understood,  of  making  the  said  appraisement,  and 
that  they  examined  (though  in  a  slight,  cursory,  and  im- 
perfect manner)  the  grist-mill,  standing  on  the  said  pre- 
mises, and  some,  but  not  all,  of  the  appurtenances  thereto  ; 
and  some,  but  not  all,  of  the  other  buildings  ;  and  that  they 
conferred  together,  but  not  upon  the  subject  of  the  said 
appraisement,  or  touching  the  value  of  the  said  mills,  or 
appurtenances,  or  other  buildings. 

And  they  deny  that,  to  their  knowledge  or  belief,  Na- 
than Anderson  and  Samuel  Mott  disagreed,  or  were  una- 
ble to  agree,  as  to  the  value  of  the  said  mills  and  appurte- 
nances, and  of  the  other  buildings,  as  is  alleged  in  the  bill : 
and  they  further  deny  that  Nathan  Anderson  and  Samuel 
Mott,  being  unable  to  agree,  proceeded  agreeably  to  the 
terms,  or  intent  and  meaning  of  the  lease,  and  chose  Da- 
vid Lydig  for  the  third  appraiser,  as  alleged  in  the  bill. 

Since  the  making  of  the  appraisement,  set  forth  in  the 
bill,  the  appellant,  Philip  Van  Cortlandt,  and  the  said 
Pierre  Van  Cortlandt,  deceased,  have  been  informed,  (and 
believe  and  aver  the  same  to  be  true,)  that  Nathan  Ander- 
son, and  samuel  Mott  did  not  confer  together,  touching 
the  value  of  the  said  mills  and  appurtenances  and  other 
buildings,  or  any  part  thereof:  that  they  neither  agreed 
nor  disagreed,  as  to  the  value  of  the  same,  or  of  any 
part  thereof;  nor  did  they,  or  either  of  them,  express 
to  the  other  any  opinion,  touching  the  value  thereof,  or  of 
any  part  thereof;  nor  did  they  choose  or  appoint  David 
Lydig  to  be  such  third  appraiser,  in  consequence  of  any 
difference  of  opinion  between  them,  touching  the  said  mat- 
ters, or  any  of  them:  but  that,  on  the  contrary,  Nathan 


23 

Anderson,  at  the  request  and  suggestion  of  Samuel  Mott, 
privately  made  to  him,  informed  the  appellant,  Philip  Van 
Cortlandt,  and  the  said  Pierre  Van  Cortlandt,  deceased, 
that  they  (Nathan  Anderson  and  Samuel  Mott)  had  disa- 
greed, and  could  not  agree,  touching  the  value  of  the  said 
property  ;  and  Nathan  Anderson  and  Samuel  Mott,  in  con- 
sequence of  their  pretended  disagreement,  and  in  violation 
of  the  trust  reposed  in  them,  and  without  authority,  under 
the  said  covenant,  did,  by  a  writing,  under  their  hands,, 
appoint,  or  pretend  to  appoint,  David  Lydig,  to  be  such 
third  appraiser ;  but,  for  greater  certainty,  as  to  the  nature 
and  particulars  of  such  appointment,  they  refer  to  the  same, 
when  produced  by  the  respondents. 

The  appellant,  Philip  Van  Cortlandt,  and  the  said  Pierre 
Van  Cortlandt,  deceased,  admit  that  David  Lydig  agreed 
to  serve  as  such  third  appraiser,  and  that  no  objections  were 
made  to  him  by  them,  or  the  respondents  ;  and  that  they 
did  not  object  to  the  appointment  of  David  Lydig,  because 
they  supposed  that  Nathan  Anderson  and  Samuel  Mott  had 
acted  in  good  faith  in  making-  the  appointment,  and  that 
they  had  actually  disagreed,  or  could  not  agree  touching 
the  value  of  the  property  to  have  been  valued  by  them,  or 
of  some  part  thereof. 

The  appellant,  Philip  Van  Cortlandt,  and  the  said  Pierre 
Van  Cortlandt,  deceased,  admit  that  Nathan  Anderson, 
and  Samuel  Mott  agreed  with  their  consent  and  approba- 
tion to  adjourn  the  meeting  until  such  time,  and  for  such 
purposes,  as  in  the  bill  is  alleged  ;  and  they  further  admit, 
that  about  the  time  mentioned  in  the  bill,  Nathan  Anderson, 
Samuel  Mott,  and  David  Lydig,  with  the  parties  or  their 
agents,  met  upon  the  premises,  and  viewed  (though  in  a 
slight,  cursory,  and  imperfect  manner,)  the  grist  mill  stand- 
ing upon  the  premises,  and  some,  but  not  all,  of  the  ap- 
purtenances thereof;  and  some,  but  not  all,  of  the  other 
buildings  for  the  purpose  of  appraising  the  same  as  alleged 
in  the  bill : 


Nathan  Anderson,  Samuel  Mott,  and  David  Lydig,  did 
not  duly  view  and  examine  the  said  grist  milJ  j  nor  take  an 
account  of  the  timber  thereof;  nor  did  they  duly  examine 
the  timber  with  respect  to  its  soundness  j  nor  did  they  duly 
examine  the  machinery  of  the  mill  with  respect  to  its  sounds 
ness  and  fitness ;  nor  did  they  duly  examine  the  six  run 
of  mill-stones  in  the  said  mill ;  nor  did  they  at  all  examine 
three  of  those  runs  as  they  ought  to  have  done  accord- 
ing to  the  trust  reposed  in  them. 

Several  years  before  the  expiration  of  the  term  mention- 
ed in  the  lease,  the  respondents  and  their  co-lessees  built 
upon  the  demised  premises  a  saw-mill,  which  at  the  time 
of  making  the  appraisement,  was,  and  still  is,  standing, 
(though  in  a  very  bad  condition,)  and  is  one  of  the  mills 
which  ought  to  have  been  valued  by  the  appraisers  in  pur- 
suance of  the  covenant  contained  in  the  lease  ;  and  Nathan 
Anderson,  Samuel  Mott,  and  David  Lydig,  did  not  at  all 
examine  the  said  saw-mill,  or  confer  touching  the  value 
thereof. 

Nathan  Anderson,  Samuel  Mott,  and  David  Lydig,  after 
having  viewed  the  premises  as  above  mentioned,  but  not 
otherwise,  in  the  presence  of  the  parties  or  agents,  and 
examined  the  lease,  and  partly,  but  not  fully  heard  the 
parties  relative  to  the  matters  submitted  to  them,  and  with- 
out hearing  certain  testimony  which  Theodorus  C.  Van 
Wyck,  the  agent  of  the  said  Pierre  Van  Cortlandt,  de- 
ceased, was  desirous  to  have  produced,  and  offered  to 
produce  to  them  relative  to  the  matters  submitted  to  them, 
as  herein  after  set  forth  ;  and  also,  after  having  had  a  pri- 
vate and  ex  parte  meeting  with  the  respondent,  Abraham 
I.  Underhill,  and  having  received  from  him  at  such  inter- 
view false  and  ex  parte  communications  and  statements  in 
relation  to  the  matter  submitted  to  them,  as  herein  after 
set  forth,  made  a  certain  appraisement  of  the  premises,  and 
included  therein  certain  property  which  ought  not  to  have 
been  appraised  or  included  in  that  appraisement,  as  herein 


25 


after  set  forth.  [The  whole  appraisement  is  set  forth  in 
haec  verba  in  the  answer ;  and,  in  addition  to  what  is  set 
forth  in  the  bill,  it  appears  that  the  mills  in  the  possession 
of  the  appellant,  Philip  Van  Corlandt,  and  John  F.  Hall- 
man  are  appraised  at  thirteen  thousand  dollars.] 

The  appraisers,  at  the  request  of  the  appellant,  Philip 
Van  Cortlandt,  appraised  one  grist  mill  with  its  appurte- 
nances, in  the  possession  of  himself  and  John  F.  Hallman, 
built  on  the  premises  underlet  as  aforesaid,  and  included 
such  valuation  in  the  appraisement  above  set  forth,  in 
which  the  respondents  have  no  interest. 

The  appellant,  Philip  Van  Cortlandt,  and  the  said  Pierre 
Van  Cortlandt,  deceased,  deny,  that  to  their  knowledge, 
remembrance,  or  belief,  the  respondent,  at  the  time  when 
the  appraisers  were  on  the  said  premises,  and  engaged  in 
making  the  said  valuation,  made  such  proposal,  touching 
the  valuation  of  the  timber  mentioned  in  the  bill,  as  is 
therein  set  forth,  and  that  such  proposal  was  disagreed  to. 

They  admit,  that  after  the  said  appraisement  had  been 
made  and  delivered,  the  respondents  offered  to  deliver  up 
the  premises  in  case  the  amount  of  the  appraisement  was 
paid;  and  that  the  respondents  also  offered  to  allow  two 
hundred  dollars  for  the  timber  used  in  building  the  mills 
and  other  buildings  ;  and  that  such  offer  was  refused ; 
they  deny  that  two  hundred  dollars  was  the  value  of 
the  said  timber.  They  also  admit,  that  the  respondents 
have  at  different  times  repeated  the  last-mentioned  offer, 
and  that  they  have  always  declined  or  refused  to  accept 
the  same,  and  that  they  have  also,  hitherto,  refused  to 
pay  the  respondents  the  amount  of  the  appraisement,  or 
any  part  thereof;  but  they  are,  and  have  been,  ever  since 
the  making  of  the  appraisement,  ready  and  willing  to  pay 
the  respondents  the  real  value  of  the  mills  and  appurte- 
nances according  to  the  covenant  contained  in  the  lease  ; 
and  also,  to  pay  in  the  manner  prescribed  in  the  covenant 

4 


26 

for  all  the  other  buildings  and  property,  which,  pursuant  to 
the  covenant,  ought  to  be  valued  and  paid  for  by  them. 

The  respondents  retained  the  possession  of  the  mills  and 
premises,  and  refused  to  deliver  up  the  possession  until  the 
13th  (and  not  15th)  day  of  August,  1813,  when  they  de- 
livered up  the  key  of  the  grist  mill,  in  the  manner,  and  with 
the  intent  set  forth  in  the  bill. 

The  appellant,  Philip  Van  Cortlandt,  and  the  said  Pierre 
Van  Cortlandt,  deceased,  admit,  that  the  respondents  pre- 
vious to,  at  the  time,  and  since  the  possession  of  the  said 
mills,  &c.  were  delivered  up,  requested  them  to  pay  the 
said  sum  of  eighteen  thousand  dollars ;  and  that  the  res- 
pondents offered  and  proposed,  that  the  sum  of  two  hun- 
dred dollars  should  be  deducted  and  retained  out  of  the 
amount  of  the  said  valuation,  for  the  value  of  the  timber 
mentioned  in  the  bill ;  and  that  those  offers  have  been 
uniformly  and  wholly  rejected  by  them,  as  alleged  in  the 
bill. 

The  appellant,  Philip  Van  Cortlandt,  and  the  said  Pierre 
Van  Cortlandt,  deceased,  deny,  that  to  their  knowledge, 
remembrance,  or  belief,  they  have  refused  to  concur  with 
the  respondents  in  adopting  any  fair  or  proper  mode  of  as- 
certaining the  value  of  the  timber  by  the  intervention  and 
judgment  of  third  persons,  or  otherwise. 

Nathan  Anderson  and  Samuel  Mott  did  not  choose  Da- 
vid Lydig  as  an  umpire,  in  relation  to  the  matters  submit- 
ted to  them  ;  but,  they  chose  and  appointed  him  to  aid  and 
assist  them,  in  making  an  appraisement  of  the  matters  sub- 
mitted to  them  ;  and  the  appellant,  Philip  Van  Cortlandt, 
and  the  said  Pierre  Van  Cortlandt,  deceased,  submit  that 
Nathan  Anderson  and  Samuel  Mott  were  not  authorized 
by  the  lease,  to  choose  or  appoint  David  Lydig  for  the  pur- 
pose of  so  aiding  or  assisting  them. 

Before  the  making  of  the  appraisement,  Theodorus  C. 
Van  Wyck,  as  the  agent  of  the  said  Pierre  Van  Cortlandt, 
deceased,  informed  Nathan  Anderson,  Samuel  Mott,  and 
David  Lydig,  that  he.  had  material  testimony  to  lay  before 


27 

them  respecting  the  matters  submitted  to  them  ;  and  there 
upon,  David  Lydig  declared  he  could  not  wait  to  receive 
the  said  testimony ;  and  in  consequence  of  that  declara- 
tion, it  was  not  produced. 

While  the  appraisers  were  conferring  upon  the  appraise- 
ment, David  Lydig  proposed  to  value  the  mills  and  appur- 
tenances, (including  certain  licenses  herein  after  mention- 
ed,) at  twenty  thousand  dollars ;  and  thereupon  Nathan 
Anderson  declared,  that  in  his  opinion,  the  mills  and  ap- 
purtenances were  not  worth,  by  several  thousand  dollars, 
the  sum  at  which  David  Lydig  proposed  to  appraise  them. 
David  Lydig  thereupon  declared,  that  the  respondents 
were  enterprising  men ;  that  they  had  taken  the  mill 
seat  while  in  a  state  of  nature;  that  they  had  rendered  the 
property  valuable  by  their  exertion  ;  that  the  lease  ought 
to  be  renewed,  or  a  new  lease  granted  of  the  premises  to 
the  respondents,  and  that  under  those  circumstances  he 
was  of  opinion  that  they  ought  to  value  the  mills  and  ap- 
purtenances at  as  large  a  sum  as  they  had  cost  the  respon- 
dents. 

Samuel  Mott,  concurring  in  the  sentiments  expressed  by 
David  Lydig,  he,  (Samuel  Mott,)  with  the  consent  of  the 
other  appraisers,  (but  without  the  knowledge  of  the  appel- 
lant, Philip  Van  Cortlandt,  or  the  said  Pierre  Van  Cort- 
landt,  deceased,)  called  the  respondent,  Abraham  I.  Un- 
derbill, into  the  room  where  the  appraisers  were  then  con- 
ferring upon  the  subject  of  the  appraisement,  and  then  and 
there  had  and  held  a  private  and  ex  parte  communication 
with  him  upon  the  subject  of  the  said  appraisement ;  the 
appraisers  then  and  there  inquired  of  the  respondent, 
Abraham  I.  Underhill,the  cost  of  making  the  dam  and  race- 
way, and  also  the  cost  of  building  the  mills,  or  the  cost  of 
the  mills  and  appurtenances ;  and  thereupon  the  respon- 
dent, Abraham  I.  Underbill,  falsely  declared  to  the  ap- 
praisers, that  the  making  of  the  dam  and  raceway  had  cost 
ten  thousand  dollars  5  and  that  the  building  the  mills,  or 
the  mills  and  their  appurtenances,  had  cost  the  further  turn 


28 


of  ten  thousand  dollars  ;  and  the  respondent,  Abraham  I. 
Underhill,  being  requested  by  Nathan  Anderson  to  produce 
to  the  appraisers  the  accounts  of  the  cost  of  the  dam,  race- 
way, mills,  and  appurtenances,  replied  that  he  possessed 
no  accounts  thereof,  and  thereupon,  withdrew  from  the 
appraisers. 

The  appraisers,  coutinuing  to  confer  upon  the  subject  of 
the  appraisement,  Samuel  Mott,  and  David  Lydig,  con- 
cluded to  appraise  the  mills  and  appurtenances,  including 
the  said  licenses,  (but  without  previously  ascertaining  the 
appurtenances,  or  their  value)  at  20,000  dollars ;  but  finally 
consented,  or  proposed,  to  appraise  the  said  property  at 
1 8,000  dollars,  provided  Nathan  Anderson  would  sign  the 
appraisement. 

The  making  of  the  dam  and  raceway  did  not  cost  a  sum 
exceeding  2000  dollars  ;  and  the  respondents,  or  one  of 
them  or  Robert  Underhill,  has  confessed,  that  the  making 
of  the  dam  and  raceway  did  not  cost  more  than  2000  dol- 
lars. 

The  just  and  true  value  of  the  dam,  raceway,  mills,  and 
appurtenances  (excluding  from  the  appurtenances  the  said 
licenses)  did  not  exceed,  at  the  time  of  making  the  ap- 
praisement, and  does  not  now  exceed,  the  sum  of  6,500 
dollars. 

The  appraisers,  in  making  up  the  said  appraisement,  did 
not  appraise  separately,  the  several  items  of  property  sub- 
mitted to  their  appraisement,  as  they  ought  to  have  done, 
but  appraised  and  valued  the  whole  at  once,  or  in  gross, 
including  the  said  licenses. 

The  respondents,  and  their  co-lcssees,  originally  con- 
structed the  said  raceway,  for  a  grist  mill  of  a  differrnt 
construction  from  the  present  grist  mill,  and  the  original 
cost  of  such  raceway  is  no  just  criterion  of  its  present  value, 
it  being  dug  with  a  d«eper  descent  than  is  necessary,  or 
proper,  for  any  mill  fit  to  be  erected  on  the  said  mill- 
seat. 


29 


The  appraisers,  at  the  request  of  the  respondents,  and 
contrary  to  the  will  of  the  said  Pierre  Van  Cortlandt,  de- 
ceased, included  in  their  appraisement,  certain  licenses, 
(commonly  called  patent  rights)  to  use  certain  elevators, 
and  other  machinery,  in  the  manufacture  of  flour,  which 
licenses,  they  alleged,  belonged  to  the  mill ;  but  which  li- 
censes (for  which  the  respondents  have  been  allowed  a 
very  large  sum  of  money,  by  the  appraisers  in  the  said  ap- 
praisement,) did  not  appertain  to  the  said  mill ;  and  that 
the  respondents  caused  to  be  included  in  the  said  appraise- 
ment, certain  licenses,  to  use  such  machinery,  with  seven 
run  of  mill-stones  ;  whereas,  in  truth,  there  were  only  six 
run  belonging  to  said  mill ;  thus  endeavouring  to  compel 
payment  for  licenses  to  use  more  machinery  in  the  said 
mill  than  they  used,  and  more  than  could  conveniently  be 
used  in  the  said  mill. 

The  respondents,  and  their  co-lessees,  or  some  of  them, 
during  the  continuance  of  the  said  term,  made  great  alte- 
rations and  repairs  in  the  grist  mill,  and  cut  and  took  tim- 
ber for  these  purposes,  and  for  other  purposes,  which  stood 
upon  lands  belonging  to  the  appellant,  Philip  Van  Cort- 
landt, and  the  said  Pierre  Van  Cortlandt,  deceased,  or 
one  of  them  ;  the  value  of  which  timber  they  submit  ought 
to  be  paid  to  them  by  the  respondents,  or  allowed  to  be 
set  off,  upon  taking  the  account  prayed  for  in  the  bill,  in 
case  such  account  should  be  decreed. 

The  respondents,  and  their  co-lessees,  during  the  said 
term,  committed,  or  suffered  great  waste  upon  the  pre- 
mises ;  and  particularly  they  suffered  two  grist-mills,  one 
of  which  was  in  good  repair,  at  the  commencement  of 
the  term,  and  of  very  considerable  value,  and  also  a  valu- 
able raceway,  belonging  thereto,  to  become,  and  be  en- 
tirely ruined  and  destroyed. 

The  appellant,  Philip  Van  Cortlandt,  and  the  said 
Pierre  Van  Cortlandt,  deceased,  submit,  that  they  ought 
to  be  allowed  the  value  of  such  waste,  or  destruction  ;  and 


30 


that  the  amount  thereof  ought  to  be  allowed  to  them, 
upon  taking  such  account,  if  the  same  should  be  decreed. 

The  respondents  have  not  assigned,  or  delivered,  or  of- 
fered to  assign  or  deliver,  the  said  licenses,  or  any  of  thern, 
or  to  secure,  in  any  manner,  the  right  to  use  the  machinery 
to  be  used  under  the  said  licenses.  The  appellant,  Phi- 
lip Van  Cortlandt,  and  the  said  Pierre  Van  Cortlandt,  de- 
ceased, do  dot  choose  to  accept  a  transfer  of  the  said  li- 
censes, or  any  of  them,  unless,  in  the  opinion  of  the  court, 
the  said  licenses  appertain  to  the  mill,  which,  they  submit, 
is  not  the  fact. 

The  said  licenses  were,  in  the  opinion  of  the  appraisers, 
of  considerable  value ;  and  although  they  did  not  deter- 
mine upon  any  particular  sum,  as  the  value  thereof,  yet 
they  allowed  the  respondents  some  large  sum  of  money, 
more  than  they  would  have  done  if  those  licenses  had  not 
been  deemed  to  appertain  to  the  mill. 

The  appellant,  Philip  Van  Cortlandt,  and  the  said  Pierre 
Van  Cortlandt,  deceased,  submit,  that  the  appraisement 
being,  by  reason  of  the  matters  herein  before  set  forth, 
erroneous,  excessive,  unjust,  and  void  ;  they  ought  not  to 
be  decreed  to  pay  the  said  sums  of  1 8,000  dollars,  and 
.500  dollars,  as  prayed  for  in  the  bill. 

The  appellant,  Philip  Van  Cortlandt,  and  the  said  Pierre 
Van  Cortlandt,  deceased,  arc  ready  and  willing,  and  offer 
to  account  with,  and  pay  to,  the  respondents,  (upon  their 
producing  and  proving  the  deeds  or  releases  from  their 
co-lessees  set  forth  in  the  bill,)  the  fair,  just,  and  full  va- 
lue, at  the  expiration  of  the  term  of  the  mills  and  appur- 
tenances, and  of  all  the  other  buildings,  according  to  the 
true  intent  and  meaning  of  the  lease  ;  and  they  are  ready 
and  willing,  and  offer  to  join  with  the  respondents  in  any 
measures  for  ascertaining  the  just  and  true  value  thereof, 
which  the  court  shall  deem  reasonable,  fitting,  and  proper. 

To  (his  answer  the  respondents  filed  a  general  repli- 
cation. 


31 


The  suit  having  afterwards  become  abated  by  tbe  death 

vor,  and  an 

of  the  said  Pierre  Van  Cortlandt,  the  respondents,  on  the  9Je"  ther'" 

26th  day  of  November,  1814,  filed  a  bill  of  revivor  and 

supplement  against  the  appellant,  Philip  Van  Cortlandt, 

in  his  own  right,  and  against  him  and  the  other  appellants, 

as  the  real  and  personal  representatives  of  the  said  Pierre 

Van  Cortlandt,  deceased ;  to  which  bill  answers  were  put 

in  by  the  appellants  submitting  to  the  revivor. 

On  the  23d  day  of  June,  1815,  the  appellants  filed  a 
cross  bill  in  the  court  of  chancery,  against  the  respondents 
and  Nathan  Anderson,  Samuel  Mott,  and  David  Lydig, 
which  bill,  in  addition  to  the  matters  set  forth  in  the  an- 
swer of  the  appellant,  Philip  Van  Cortlandt,  and  the  said 
Pierre  Van  Cortlandt,  deceased,  sets  forth  and  contains  in 
substance  as  follows,  viz. 

At  the  commencement  of  the  term  granted  by  the  lease  c™»s  win»r 
herein  before  mentioned,  there  were  erected,  and  being  ]™**t  in  l0hte 
on  the  demised  premises,  two  grist  mills,  a  dam  across  chMcery- 
Croton  river,  and  a  raceway  for  the  use  of  the  mills. 

Shortly  after  the  commencement  of  the  term,  the  les- 
sees named  in  the  said  lease  entered  upon  the  premises, 
and  built  a  grist  mill  on  the  easterly  side  of  Croton  river, 
a  dam  across  the  river,  (a  small  distance  above  the  place 
where  the  dam  that  was  standing  at  the  time  they  took 
possession  had  been  erected,)  and  dug,  and  constructed,  a 
raceway  to  carry  the  waters  collected  by  the  dam  to  the 
mill.  The  lessees  also  erected,  during  the  continuance  of 
the  term,  a  saw-mill,  propelled  by  a  part  of  the  waters 
conducted  by  the  raceway,  two  dwelling-houses,  a  barn,  a 
waggon-house,  a  house  for  storing  barrels,  and  some  other 

small  out-houses. 

  # 

The  timber  and  wood  used  by  the  lessees  in  building  the 
said  mills  and  other  buildings,  was  cut  and  taken  off  the 
demised  premises,  or  from  off  other  lands  belonging  to  the 
lessors,  or  one  of  them.  The  timber,  wood,  and  other 
materials  used  in  building  the  dam,  was  taken  from  off  the 


32 


demised  premises,  or  other  lands  belonging  to  the  lesson, 
or  one  of  them.  The  raceway  extends  forty  rods,  and, 
for  the  distance  of  thirty-two  rods,  is  composed  of  stone 
and  gravel,  dug  and  taken  from  the  demised  premises ; 
and  the  timber  and  wood  used  in  building  the  residue  of 
the  raceway  was,  in  like  manner,  cut  and  taken  from  off" 
the  premises,  or  other  lands  belonging  to  the  lessors,  or 
one  of  thenv 

At  or  about  the  time  the  lessees  built  their  dam,  they 
tore  down  and  demolished  the  dam  which  was  standing  on 
the  premises  at  the  commencement  of  the  term. 

At  or  about  the  time  the  lessees  built  the  saw-mill,  they 
tore  down  and  demolished  one  of  the  grist-mills  which  was 
standing  on  the  premises  at  the  commencement  of  the 
term  ;  and  the  timber  and  materials  thereof  were  used  in 
building,  or  altering,  the  saw-mill,  or  in  building  some  of 
the  other  buildings,  or  were  consumed  for  firewood  or 
some  other  purpose. 

The  lessees  opened  a  valuable  quarry  of  stone  on  the 
demised  premises,  on  the  westerly  side  of  Croton  river, 
nearly  opposite  the  mills,  which  was  not  opened  at  the 
commencement  of  the  term,  and  from  which  the  stones 
composing  the  foundations  of  the  mills,  dwelling-houses, 
and  other  buildings,  or  the  far  greater  part  thereof,  were 
taken. 

Some  short  time  after  the  lessees  had  built  the  mills, 
dam,  and  raceway,  and  in  or  about  the  year  1 794,  or  1795, 
they  made  an  entire,  or  a  very  considerable  alteration  in 
the  machinery  of  the  grist-mill,  which  machinery  so  alter- 
ed, or  machinery  upon  the  same  construction,  remained 
in  the  grist-mill  during  the  residue  of  the  term. 

Had  the  raceway  been  originally  constructed  for  the 
use  of  a  mill  containing  machinery  similar  to  that  used  in 
the  grist-mill  after  its  alteration,  it  might  have  been  con- 
structed at  much  less  expense  than  it  was. 


33 


The  expense  of  building  the  mills,  dam,  and  raceway, 
including  the  alterations  in  the  machinery  of  the  mill,  did 
not  exceed  14,000  dollars,  or  it  amounted  to  a  sum  far  less 
than  18,000  dollars.  The  expense  of  making  the  machi- 
nery, which  became  useless  in  consequence  of  the  alter- 
ations, amounted  to  1000  dollars. 

The  appellants  submit,  that  the  appointment  of  Samuel 
Mott,  and  also  the  appointment  of  David  Lydig,  was,  and 
is,  irregular  and  void. 

The  respondents,  or  one  of  them,  in  whose  possession 
the  premises  were  at  the  time  they  were  viewed  and  exa- 
mined, and  had  been  for  some  time  previous,  with  intent 
to  injure  and  defraud  the  appellant,  Philip  Van  Cortlandt, 
and  Pierre  Van  Cortlandt,  deceased,  and  to  induce  the 
appraisers  to  value  the  mills,  and  such  matters  as  they  in- 
sisted appertained  thereto,  at  a  sum  greater  than  their 
real  value,  did,  before  the  appraisers  viewed  and  examin- 
ed the  mills,  use  divers  unjust  and  improper  means  to  con- 
ceal from  the  appraisers  the  state  of  repair  in  which  the 
mills  then  were. 

And,  particularly,  the  respondents,  (who  had  some  time 
before  the  meeting  of  the  appraisers,  ceased  to  use  the 
mills,  or  do  any  business  therein,)  or  some  person  by  their 
procurement  or  direction,  covered  with  boards,  or  plank, 
and  nailed  up,  the  cog-pit,  in  which  is  contained  some  of 
the  principal  machinery  of  the  grist-mill,  by  means  where- 
of the  appraisers  were  prevented  from  viewing  the  ma- 
chinery in  a  proper  manner,  which  was  then  in  a  very  de- 
cayed state,  and  in  bad  repair,  but  such  machinery  was  in- 
cluded in  the  appraisement. 

And  the  respondents,  or  some  person  by  their  procure- 
ment or  direction,  covered  over  a  part  of  the  raceway 
with  loose  boards,  or  planks,  which  prevented  the  apprais- 
ers from  properly  viewing  the  timber  and  plank  of  that 
part  of  the  raceway,  some  of  which  were  then  very  de- 
cayed and  rotten. 

5 


31 

The  roof  covering  lhat  part  of  the  grist  mill,  called  the 
addition,  at  the  time  of  the  meeting  of  the  appraisers,  was 
very  leaky  and  in  bad  repair,  and  the  floor  of  the  garret  was 
in  consequence  of  the  leaks,  very  much  spotted  and  stain- 
ed ;  and  in  consequence  of  the  leaks,  the  garret  had  not 
been  used  for  the  purpose  of  storing  flour  or  meal  for  a  very 
considerable  time  previous  to  the  meeting  of  the  appraisers; 
but  the  respondents  or  some  person  by  their  procurement 
or  direction,  some  short  time  previous  to  the  meeting  of  the 
appraisers,  covered  the  floor  with  bran,  shorts,  meal  or 
flour ;  to  conceal  the  stains  or  spots  on  the  floor  from  the 
appraisers,  and  to  induce  them  to  believe  that  the  roof  was 
not  leaky,  or  in  bad  repair. 

The  appraisers  did  not,  previous  to  making  their  appraise- 
ment, determine  what  matters  and  things  were  to  be  consi- 
dered as  appurtenances  to  the  mills  ;  nor  did  they  appraise 
separately  the  several  items  of  property  included  in  their 
appraisement,  but  valued  the  whole  of  the  property  at  once 
and  in  gross  including  the  several  matters  herein  after  men- 
tioned ;  and  the  appraisers  included  in  their  appraisement 
as  appertaining  to  the  mills  divers  matters  and  things 
which  did  not  appertain  ;  and  particularly  they  included 
the  dam  and  raceway ;  the  house  for  storing  barrels  ;  the 
road  leading  to  the  mills  on  the  easterly  side  of  the  river, 
and  the  road  leading  to  the  store-house  on  the  westerly 
side  ;  the  floating  foot  bridge  across  the  river  near  the  mills  ; 
a  wire  screen  for  cleaning  grain,  but  which  was  then  of  no 
use  ;  and  also,  certain  licenses  to  use  machinery,  called 
patent-rights,  with  seven  run  of  stones,  (although  there 
were  but  six  in  the  mill,)  which  licenses,  it  was  alleged,  had 
theretofore  been  procured  by  the  lessees.  The  appellants 
submit,  that  none  of  the  matters  and  things  last  above  men- 
tioned, ought  to  be  considered  as  appertaining  to  the  mills. 

Although  the  appraisers  did  not  value  separately  the 
items  of  property  appraised  by  them,  as  appertaining  to 
ihe  mills,  yet  they  allowed  some  large  sum  of  money  more 


35 


than  they  would  have  allowed,  if  they  had  not  considered 
the  items  of  property  last  above  mentioned,  or  some  of 
them  as  appertaining  to  the  mills. 

An  entire  new  dam  and  raceway,  similar  to  those  built 
by  the  lessees,  and  an  entire  new  grist-mill  and  saw-mill 
of  the  same  dimensions,  and  with  the  same  run  of  stones 
with  those  built  by  the  lessees  with  all  the  requisite  ma- 
chinery, might  have  been  built,  at  the  places  where  the 
dam,  raceway,  and  mills  were  built  by  the  lessees,  at  the 
time  of  the  appraisement  for  tAvelve  thousand  dollars  ;  or 
for  some  other  sum  less  than  eighteen  thousand  dollars. 

The  appellants  submit  that  the  appraisement  is  errone- 
ous, excessive,  unjust,  and  void. 

During  the  continuance  of  the  term  the  lessees  commit- 
ted and  suffered  great  waste  and  destruction  to  the  pre- 
mises, and  to  the  mills  and  buildings  standing  thereon  at 
the  commencement  of  the  term,  and  to  those  erected  during 
the  continuance  thereof;  and  particularly  the  lessees  tore 
down  and  destroyed  the  dam  and  one  of  the  mills,  standing 
on  the  premises  at  the  commencement  of  the  term  ;  and 
suffered  the  other  of  the  mills,  and  the  raceway,  and  road 
leading  to  the  mills,  to  fall  into  decay.    The  lessees,  also 
opened  the  before  mentioned  quarry  ;  whereby  the  adja- 
cent ground,  which  was  an  eligible  scite  for  building  vessels, 
and  for  piling  wood,  to  be  transported  to  New- York,  has 
been  washed  away,  and  become  entirely  unfitted  to  built 
vessels,  and  will  require  very  considerable  expense  to  be 
made  fit  to  pile  up  wood.    The  lessees,  before  they  sur- 
rendered up  the  premises,  tore  down  a  house,  and  took  the 
roof  from  off  a  waggon  shed,  both  of  which  had  been  built 
on  the  premises  during  the  term,  and  converted  to  their 
own  use  the  materials  thereof. 

The  respondents,  (although  required,)  did  not  deliver  up 
the  possession  of  the  mills  until  the  13th  August,  after  the 
expiration  of  the  term;  nor  of  the  dwelling  house,  and  the 
rest  of  the  premises  until  the  24th  of  August. 


36 

The  appellants  submit,  that  the  amount  of  the  damages 
occasioned  by  the  waste  committed  and  suffered  by  the 
lessees,  by  the  cutting  and  carrying  away  of  timber  and 
wood  by  the  lessees,  and  by  withholding  the  possession  of 
the  premises,  ought  to  be  deducted  from  the  amount  at 
which  the  mills  and  appurtenances  should  be  appraised. 

Although  the  appellant,  Philip  Van  Cortlandt,  and  Pierre 
Van  Cortlandt,  deceased,  in  the  lifetime  of  Pierre  Van 
Cortlandt,  declined  to  pay  the  amount  of  the  said  appraise- 
ment, because  they  considered  it  as  unjust,  excessive,  er- 
roneous, and  void  ;  yet  they  were  always  ready  and  wil- 
ling, and  offered,  to  pay  the  real  and  true  value  of  the 
mills,  and  whatever  appertained  thereto,  and  of  the  other 
buildings,  according  to  the  provisions  contained  in  the 
lease  ;  and  were  also  ready  and  willing,  and  offered,  to 
join  in  any  fair  and  equitable  mode  of  causing  the  same  to 
be  appraised  and  valued. 

The  appellants  are  also  ready  and  willing,  and  offer,  to 
pay  the  respondents,  upon  their  establishing  their  right  to 
receive  the  same,  the  just  and  true  value  at  the  expira- 
tion of  the  term,  of  the  mills  and  whatever  appertained 
thereto,  and  of  the  other  buildings,  according  to  the  pro- 
visions contained  in  the  lease  ;  and  they  are  ready  and 
willing,  and  offer,  to  join  in  any  measures  for  ascertaining 
the  value  thereof,  which  the  court  may  deem  reasonable, 
fitting,  and  proper. 

On  the  21st  of  September,  1813,  the  respondents  filed 
their  bill  against  the  appellant,  Philip  Van  Cortlandt,  and 
Pierre  Van  Cortlandt,  deceased,  to  compel  the  payment 
of  the  amount  of  the  appraisement ;  and  since  the  death 
of  Pierre  Van  Cortlandt,  they  have  filed  their  bill  of  re- 
vivor and  supplement  against  the  appellants. 

The  appellants  pray  that  the  appraisement,  valuation, 
or  report,  may  be  vacated,  annulled,  and  set  aside,  and 
that  the  value  of  the  mills,  and  whatever  appertained 
thereto,  and  of  the  other  buildings,  at  the  expiration  of 


37 


the  term,  according  to  the  conditions  of  the  lease,  may  be 
ascertained  in  some  proper  manner  to  be  directed  by  the 
court ;  and  that  the  appellants  may  be  allowed  to  set  oft' 
against  the  amount  of  such  appraisement  the  amount  of 
the  damages  occasioned  by  withholding  the  premises,  and 
by  the  waste  committed  by  the  lessees  ;  and  the  value  of 
the  timber  and  wood  cut  and  carried  off  by  the  lessees  as 
before  mentioned,  for  other  purposes  than  tnose  mention- 
ed in  the  lease  ;  and  that  the  amount  of  those  damages, 
and  the  value  of  the  last-mentioned  timber  and  wood,  and 
also  the  value  of  the  timber  and  wood  used  by  the  lessees 
in  building  the  mills  and  other  buildings,  may  also  be  as- 
certained and  determined,  in  some  proper  manner  to  be 
decreed  by  the  court ;  and  that  they  may  have  such  other 
relief  as  their  case  may  require. 

On  the  16th  of  February,  1816,  the  respondents  filed 
their  answer  to  this  bill,  which  answer,  among  other  things, 
sets  forth  and  contains,  in  substance,  as  follows,  viz. 

At  the  commencement  of  the  term  granted  by  the  said 
lease,  there  were  the  following,  and  no  other,  erections  on 
the  premises,  viz.  The  remains  of  an  old  grist-mill,  so 
much  decayed  as  to  be  unfit  for  use,  which  had  not  been 
used  as  a  mill  for  many  years,  and  some  parts  of  which 
had  been  used  as  a  stable ;  a  small  grist-mill,  very  much 
out  of  repair,  and  not  worth  continuing  in  use  as  a  mill  ; 
the  remains  of  a  raceway  thereto,  very  much  decayed  and 
out  of  repair  ;  and  the  remains  of  a  temporary  dam,  made 
by  laying  up  loose  stones,  the  greater  part  of  which  had 
recently  been  partly  demolished  and  thrown  down  by  the 
breaking  up  of  the  ice  in  the  river  every  spring,  and 
which  dam,  at  the  commencement  of  the  term,  was  all, 
or  mostly  down ;  and  two  small  dwelling-houses,  very 
much  out  of  repair,  and  which  appeared  to  be  old  ;  both 
of  which  remained  on  the  premises  when  possession  was 
delivered  up. 

Shortly  after  the  execution  of  the  lease,  the  lessees  en- 
tered upon  the  premises,  and  during  the  years  1792,  and 


38 


1793,  built  a  grist-mill,  for  manufacturing  purposes,  on 
the  easterly  side  of  the  river,  containing  five  run  of  stones  ; 
a  saw-mill,  two  small  dwelling-houses  for  their  work  peo- 
ple, a  roofed  cellar,  a  smoke-house,  a  barn,  and  black- 
smith's shop,  a  dam  across  the  river,  partly  above  and 
partly  below  the  old  dam,  and  a  raceway  to  carry  the  wa- 
ter to  the  mills,  and,  during  the  years  1794,  1793,  1796, 
and  1797,  they  built  a  dwelling-house,  and  two  small  out- 
houses attached  thereto  ;  an  addition  to  the  grist-mill,  and 
introduced  another  run  of  stones  therein  ;  an  addition  to 
the  barn,  part  of  which  was  used  as  a  waggon-house, 
another  small  dwelling-house  to  accommodate  labourers, 
and  made  an  alteration  in  the  saw-mill,  introducing  another 
saw,  which  were  all  the  buildings  erected  by  the  lessees 
during  the  term,  except  a  house  about  eight  feet  square, 
near  the  grist-mill,  and  a  barrack  for  hay,  which  were  built 
in  the  year  1810. 

About  the  years  1794,  or  1795,  the  lessees  made  exten- 
sive improvements  to  the  raceway,  which  were  found  ne- 
cessary to  make  the  same  permanent  and  lasting. 

All  the  timber  and  wood  taken  by  the  lessees  from  off 
the  demised  premises,  or  other  lands  belonging  to  the  les- 
sors, and  used  in  building  the  dam  and  raceway,  mills,  and 
whatever  appertained  thereto,  and  other  buildings,  and 
for  alterations  and  repairs  made  therein,  amounts  to  about 
6,616  feet,  6  inches,  solid  measure,  and  eighteen  hemlock 
logs,  as  set  forth  in  schedule  A.  annexed  to  the  answer. 

All  the  shingles,  plank,  and  boards,  and  a  part  of  the 
timber,  (but  how  much  they  cannot  set  forth,)  used  by  the 
lessees  in  the  mills,  dam,  raceway,  and  other  buildings, 
(except  about  1.500  feet  of  oak  boards  and  plank,  and  the 
shingles  for  the  roof  of  a  house  fourteen  feet  square,  in- 
cluded in  the  schedule,)  were  purchased  or  obtained  by 
the  lessees. 

The  gravel,  stone,  and  earth,  used  in  making  the  dam 
and  raceway,  were  taken  off  the  premises. 


39 


The  respondents  believe,  that  the  principal  raceway  dug 
in  the  side  of  the  hill,  is  about  the  length,  and  the  parts 
made  with  timber,  boards  and  plank,  or  composed  of  gra- 
vel and  stone  only,  are  about  the  length  and  distance  al- 
leged in  the  bill,  but  that  there  was  another  part  of  the 
raceway,  about  300  feet  long,  not  included  in  the  princi- 
pal raceway,  and  above  the  same,  but  connected  there- 
with, which  had  not  been  so  difficult  in  the  construction  as 
the  principal  raceway. 

When  the  dam  and  raceway  were  building,  the  lessees 
used  therein  such  of  the  stones  which  had  composed  the 
old  dam,  and  were  then  lying  in  the  river,  as  they  found 
convenient  and  suitable  ;  but  what  proportion  thereof  were 
so  used,  they  cannot  say. 

The  respondents  deny,  that  the  lessees  tore  down  any 
part  of  the  old  dam,  which  was  in  a  permanent  state,  or 
any  other  part  of  the  old  dam,  except  by  taking  such  of 
the  stones  as  had  composed  the  same,  and  were  then  down 
in  the  river,  or  lying  loosely  together,  but  not  making  a 
dam,  in  any  just  sense  of  that  word. 

After  the  lessees  had  taken  possession  of  the  premises, 
and  previous  to  the  year  1797,  the  lessees  took  down  a 
part  of  the  timber  of  the  frame  of  the  remains  of  the  old 
mill,  and  used  the  same  in  erecting  a  barrel  house,  and  an 
addition  to  the  barn  ;  all  the  residue  of  the  timber  of  the 
old  mill,  fit  for  building,  was  taken  away  by  appellant, 
Philip  Van  Cortlandt,  (but  cannot  say  how  much  was  so 
taken,)  and  all  the  residue  of  the  frame  of  the  old  mill 
was  consumed  for  firewood,  or  decayed  and  wasted. 

The  respondents  deny  that  the  lessees  opened  any 
(piarry  or  mine  on  the  premises. 

They  admit,  that  the  principal  part  of  the  stone  used 
for  the  foundation  of  the  mills,  were  taken  from  the  wes- 
terly side  of  the  river,  nearly  opposite  the  mills  ;  a  con- 
siderable part  of  the  said  stone  were  loose  in  the  bed, 
and  on  the  side  and  margin  of  the  river ;  for  the  greater 


40 


part  of  the  said  stone  were  split  from  off  the  side  of  rocks 
which  projected  into  the  river  at  the  side  and  adjacent  to 
the  bed  of  the  river ;  they  cannot  say  what  proportion 
was  split  from  off  the  rocks.  They  believe  no  stone  had 
been  taken  from  that  place  at  the  commencement  of  the 
term. 

During  the  years  1794,  1795,  and  1796,  the  lessees 
made  a  considerable  alteration  in  their  grist-mill,  but  an 
entire  alteration  was  not  made,  and  the  business  in  the 
mill  was,  thereafter,  conducted  on  the  altered  plan. 

The  respondents  admit,  that  a  raceway  might  have  been 
constructed  for  the  use  of  a  mill  containing  machinery 
similar  to  that  in  the  grist-mill  after  the  alteration,  for  less 
money  than  the  raceway  actually  cost,  but  how  much  leas 
they  cannot  state,  but  that  a  raceway  as  suitable,  perma- 
nent, and  valuable,  for  the  milling  business,  as  the  one 
made  by  the  lessees,  could  not  have  been  made  at  that 
place  for  less  money  than  the  said  raceway  actually  cost. 
The  respondents  are  fully  persuaded,  and  believe,  that  if 
the  raceway  had  been  constructed  at  the  expiration  of  the 
lease,  it  would  have  cost,  at  least,  three  times  as  much  as 
the  said  raceway  actually  cost,  by  reason  of  the  difference 
in  the  price  of  labour. 

The  lessees  kept  no  separate  account  of  the  cost  of  the 
grist-mill,  and  machinery,  or  saw-mill,  or  dam  and  race- 
way, separate  from  the  cost  of  the  other  buildings  and 
improvements,  so  as  to  be  able  to  ascertain  their  sepa- 
rate costs ;  but  that  an  account  of  the  whole  expense  of 
the  buildings  and  improvements  was  kept. 

The  respondents  cannot  state  the  exact  cost  of  the  mills, 
dam,  and  raceway,  including  the  alterations  in  the  ma- 
chinery, separately  from  the  other  expenses  ;  but  they  are 
confident,  and  believe,  that  the  dam,  raceway,  and  mills, 
including  the  alterations  in  the  machinery,  cost,  at  least, 
18,000  dollars. 


41 


They  cannot  state  the  expense  of  the  machinery  ren- 
dered useless  by  the  alterations,  as  no  account  was  kept 
thereof ;  but  they  do  not  believe  the  cost  thereof  exceed- 
ed 400  dollars. 

Before,  and  at  the  time  of  the  appointment  of  Nathan 
Anderson,  it  was  understood,  between  the  lessors  and  the 
respondents,  that  the  proper  mode  of  choosing  the  ap- 
praisers was  for  each  party  to  choose  one,  agreeable  to 
which  understanding  the  lessors  chose  Nathan  Anderson, 
in  which  choice  the  respondents  concurred.  They  con- 
tend, that  such  appointment  was  in  conformity  to  the 
lease. 

On  the  1st  of  May,  1813,  the  respondents  chose  and 
appointed  Samuel  Mott  as  an  appraiser  on  their  part,  and 
gave  the  lessors  notice  thereof. 

The  respondents  do  not  know,  or  believe,  that  the  les-< 
sors  were  acquainted  with  the  intention  of  the  respondents 
to  choose  Samuel  Mott  as  an  appraiser  on  their  part ;  but 
the  lessors  were  fully  acquainted  with,  and  knew  the  de- 
termination of  the  respondents  to  choose  an  appraiser  to 
act  with,  and  assist,  Nathan  Anderson,  and  that  they  did 
not  object  to  the  appointment  of  Samuel  Mott,  but  ap- 
peared satisfied  therewith.  The  respondents  are  advised, 
that  the  appointment  of  Samuel  Mott  was  made  conforma- 
ble to  the  covenants  contained  in  the  lease. 

On  the  1st  of  May,  1813,  Nathan  Anderson  and  Samuel 
Mott  met  on  the  premises,  and  spent  the  best  part  of  two 
days  in  viewing  the  matters  submitted  to  their  appraise- 
ment, and  conferring  together  thereon ;  they  viewed  the 
grist-mill  and  those  matters  which  appertained  thereto,  and 
were  pointed  out  and  intended  to  be  included  in  the  valu- 
ation in  a  critical  manner,  and  sufficiently  to  make  up  a 
correct  judgment  of  their  value  ;  and  also  the  other  build- 
ings, sufficiently  to  form  a  correct  opinion  that  they  were 
worth  more  than  500  dollars. 

6 


42 


The  appellant,  Philip  Van  Cortlandt,  and  Theodorus  C. 
Van  Wyck,  as  the  agent  of  Pierre  Van  Cortlandt,  deceas- 
ed, were  in  company  with  the  said  appraisers  the  greater 
part  of  the  time  they  were  viewing  the  matters  submitted 
to  them  ;  and  Van  Wyck  was  very  assiduous  in  pointing 
out  pretended  defects,  which  he  represented  as  lessening 
the  value  of  the  matters  to  he  appraised  ;  but  the  apprais- 
ers, and  even  the  appellant,  Philip  Van  Cortlandt,  appear- 
ed to  consider  the  objections  of  Van  Wyck  as  imaginary 
and  unimportant. 

The  respondents  admit,  that  Samuel  Mott  and  Nathan 
Anderson  did  not  minutely  inspect  the  saw-mill  and  barrel 
house,  because  the  respondents  informed  the  appraisers 
that  they  were  not  submitted  to  them,  or  intended  to  be 
included  in  the  valuation. 

The  respondents  have  understood  from  both  Nathan 
Anderson  and  Samuel  Mott,  and  believe  that  they  confer- 
red as  to  the  value  of  the  grist-mill  and  all  those  matters 
which  appertained  thereto,  and  that  they  could  not  agree 
in  opinion  as  to  the  value  thereof ;  and,  also,  that  they  had 
conferred  together  as  to  the  value  of  the  other  buildings, 
but  the  respondents  did  not  understand,  nor  do  they  be- 
lieve, that  there  was  any  disagreement  as  to  the  value 
thereof,  nor  do  the  respondents  believe  but  that  they 
mutually  agreed  that  the  value  thereof  exceeded  500 
dollars. 

Nathan  Anderson  did,  in  the  presence  of  the  appellant, 
Philip  Van  Cortlandt,  Samuel  Mott,  and  the  respondents, 
inform  the  appellant,  Philip  Van  Cortlandt,  and  the  res- 
pondents, that  they,  Nathan  Anderson  and  Samuel  Mott, 
had  conferred  on  the  business  left  to  tbem,  and  had  disa- 
greed, or  could  not  agree  in  opinion  touching  the  value 
thereof.  The  respondents  do  not  know  whether  such  in- 
formation was  given  by  Nathan  Anderson  at  the  request 
of  Samuel  Mott,  but  think  it  possible  it  was,  as  Samuel 
Mott  assented  to  the  truth  of  Nathan  Anderson's  state- 


43 


went.  This  disagreement  the  respondents  then  under- 
stood, and  now  believe,  related  to  the  value  of  the  grist- 
mill, and  whatever  appertained  thereto,  and  not  to  the 
olher  buildings. 

Nathan  Anderson  and  Samuel  Mott  appointed  David 
Lydig  for  the  third  person,  or  appraiser,  by  a  writing  un- 
der their  hands,  which  is  set  forth  in  the  answer  in  haec 
verba. 

The  appellant,  Philip  Van  Cortlandt,  previous  to  the  ap- 
pointment of  David  Lydig,  but  after  he  understood  the  ap- 
praisers could  not  agree,  proposed  David  Lydig  to  the  res- 
pondents as  a  suitable  person  for  a  third  appraiser  to  as- 
sist Samuel  Mott  and  Nathan  Anderson,  to  which  proposal 
the  respondents  agreed  ;  and  in  consequence  of  the  appel- 
lant, Philip  Van  Cortlandt,  and  Pierre  Van  Cortlandt,  de- 
ceased, and  the  respondents  uniting  in  opinion,  and  con- 
senting that  David  Lydig  should  be  chosen  for  the  third 
appraiser,  his  appointment  was  made  by  Nathan  Anderson 
and  Samuel  Mott,  in  conformity  with  the  wishes  and  consent 
of  both  parties. 

The  respondents  do  not  believe  the  meaning  of  the  lease 
to  be,  that  in  case  a  third  appraiser  should  be  chosen,  he 
should  be  chosen  as  an  umpire  ;  but  they  always  understood, 
and  still  believe,  the  true  meaning  of  the  lease  to  be,  that 
such  third  appraiser  should  be  chosen  to  assist  the  other 
two:  and  such  was  the  understanding  of  Samuel  Mott  and 
Nathan  Anderson,  the  lessors  and  respondents  at  the  time 
David  Lydig  was  chosen,  and  so  expressed  by  the  appellant, 
Philip  Van  Cortlandt,  and  the  respondents,  and  assented  to 
by  Theodorus  C.  Van  Wyck,  the  agent  of  Pierre  Van  Cort- 
landt, and  no  objection  was  made  at  the  time  of  David  Ly- 
dig's  appointment,  nor  afterwards,  during  the  whole  course 
of  the  business,  against  the  appraisement  being  conducted 
in  that  manner  ;  or  to  David  Lydig's  acting  with  and  assist- 
ing Nathan  Anderson  and  Samuel  Mott  in  making  up  an  ap- 
praisement ;  nor  was  any  suggestion  made  that  David  Ly- 


44 


dig  ought  to  act  separately  or  alone  by  the  appellant, 
Philip  Van  Cortlandt,  or  Theodorous  C.  Van  Wyck,  the 
agent  of  Pierre  Van  Cortlandt. 

At  the  time  of  David  Lydig's  appointment,  the  appellant, 
Philip  Van  Cortlandt,  and  Pierre  Van  Cortlandt,  deceased, 
were  fully  acquainted  with  the  manner  of  such  appoint- 
ment, and  knew  that  he  was  to  act  with,  and  assist  Samuel 
Mott  and  Nathan  Anderson  ;  and  was  not  chosen  as  an 
umpire. 

On  the  8th  July,  1813,  the  appraisers,  to  wit,  David 
Lydig,  Samuel  Mott,  and  Nathan  Anderson,  and  the  appel- 
lant, Philip  Van  Cortlandt,  and  Theodorus  C.  Van  Wyck, 
the  agent  of  Pierre  Van  Cortlandt,  and  the  respondents 
met  on  the  premises  ;  the  appraisers  viewed,  in  a  careful 
and  satisfactory  manner,  the  grist-mill,  and  all  those  mat- 
ters which  appertained  thereto,  and  were  submitted  to 
them  ;  and  also  the  other  buildings,  sufficiently  to  ascer- 
tain that  their  value  exceeded  500  dollars. 

The  respondents  admit  that  the  appraisers  did  not  view 
the  saw-mill  and  barrel-house,  because  the  respondent  at 
the  time  stated  that  they  were  not  intended  to  be  includ- 
ed in  the  appraisement,  nor  do  they  believe  they  were. 

The  appraisers  did,  in  the  opinion  and  belief  of  the  re- 
spondents, sufficiently  examine  the  grist-mill,  and  the  tim- 
ber thereof,  with  respect  to  its  soundness  ;  and  the  ma- 
chinery thereof,  in  regard  to  its  soundness  and  ability  to 
perform  ;  and  that  the  appraisers,  or  one  of  them,  took, 
and  kept  an  account  of  the  matters  submitted  to,  and 
viewed  by  them  ;  but  the  respondents  do  not  know  whe- 
ther they  kept  an  account  of  the  timber  of  the  mill.  All 
the  six  run  of  stones  in  the  grist-mill  were  fully  examined 
by  the  appraisers,  or  their  goodness  and  value  fully  made 
known  to  them  by  the  admission  of  the  appellant,  Philip 
Van  Cortlandt,  and  Theodorus  C.  Van  Wyck.  The  ap- 
praisers saw  the  grist-mill  grind,  and  going,  and  had.  there- 


45 


by,  a  fair  opportunity  of  forming  a  correct  opinion  of  the 
ability  of  the  grist-mill  and  machinery  to  perform. 

The  respondents  deny,  that  at  any  time  whatever,  any 
means  were  used,  directly,  or  indirectly,  to  conceal  from 
the  appraisers  the  real  and  true  state  of  repair  of  the  grist- 
mill, or  the  matters  and  things  appertaining  thereto,  and 
submitted  to  the  appraisers. 

The  demised  premises,  and  the  buildings  and  improve- 
ments thereon,  were  more  immediately  under  the  control 
of  the  respondent,  Abraham  I.  Underhill,  for  several  years 
previous  to,  and  at  the  expiration  of,  the  lease,  as  he  resi- 
ded thereon  with  his  family,  and  had  the  care  of  the  busi- 
ness done  in  the  mills. 

The  respondent,  Abraham  I.  Underhill,  states,  for  him- 
self, that  the  milling  business  done  in  the  grist-mill  was 
brought  to  a  close,  and  the  mill  ceased  to  be  used  about 
the  last  of  April,  1813,  after  which  time  the  mill  was  not 
used  except  to  show  to  the  appraisers  her  ability  to  per- 
form, and  to  clear  out  the  mills.  He  admits,  that  about 
the  time  the  mill  ceased  to  be  used  for  manufacturing  pur- 
poses, he  directed  the  side  of  the  cog-pit  to  be  nailed  up, 
(through  which  persons  might  otherwise  have  entered  the 
mill  when  it  was  otherwise  fully  secured,)  to  prevent  the 
machinery  from  being  injured  before  the  valuation,  and  to 
preserve  the  same,  and  for  no  other  purpose  whatever. 
The  appraisers,  or  one  of  them,  went  into  the  cog-pit  and 
examined  the  machinery  therein,  which  was  the  proper 
method  and  place  for  the  same  to  be  sufficiently  examined. 
He  admits  that  the  machinery  in  the  cog-pit  was  important, 
and  was  included  in  the  appraisement ;  but  denies  that  it 
was  the  most  costly,  or  expensive  machinery  belonging  to 
the  mill ;  or  that  it  was  in  a  decayed  state,  or  bad  repair  ; 
<sr  that  it  was  prevented,  by  the  cog-pit  being  boarded  up, 
from  being  sufficiently  examined  by  the  appraisers ;  or 
that  the  cog-pit  was  boarded  up  with  a  view,  or  for  the 
purpose,  of  preventing  the  machinery  therein  from  being 
critically  examined  by  the  appraisers. 


46 


The  respondent,  Abraham  I.  Underbill,  further  say», 
that  some  short  time  previous  to  the  expiration  of  the 
lease,  (but  when  in  particular  he  cannot  set  forth,)  and 
while  he  was  engaged  in  repairing  the  grist-mill,  he  caused 
a  bridge  and  platform  across  the  raceway,  (which  had  been 
used,  for  many  years,  to  set  barrels  on  when  brought  to 
the  mill  by  waggons,)  also  to  be  repaired  ;  and  some  boards 
were  laid  down  and  used  in  repairing  the  same,  and  a  pas- 
sage to  the  gates  of  the  raceway  ;  but  he  denies  that  any 
boards,  or  plank,  were  laid  down,  or  carried  over,  the  race- 
way, except  for  the  purpose  aforesaid,  or  that  the  ap- 
praisers were  thereby  prevented  from  examining  that  part 
of  the  raceway  ;  the  appraisers,  or  some  of  them,  did  ac- 
tually examine  that  part  of  the  raceway  where  the  boards 
had  been  laid  down  and  used  as  aforesaid.  He  denies 
that  any  of  the  timber  and  plank  of  the  raceway  was  in 
a  very  decayed  and  rotten  state. 

The  respondent,  Abraham  I.  Underhill,  further  admits, 
that  the  roof  of  the  addition  to  the  grist-mill  leaked  in  se- 
veral places,  but  not  so  as  to  prevent  the  first  floor  beneath 
the  roof  from  being  used  for  the  purposes  for  which  it  was 
originally  designed.  He  also  admits,  that  he  directed  small 
quantities  of  bran  or  shorts,  to  be  placed  in  certain  spots 
on  the  floor,  under  the  roof,  where  the  leaks  were,  which 
had  been  the  constant  practice  from  the  time  the  leaks 
were  discovered,  to  absorb  the  water  which  might  fall 
on  the  floor;  he  thinks  it  probable  there  might  have 
been  small  quantities  of  bran,  or  shorts,  on  the  floor  at 
the  time  the  appraisers  viewed  the  mills,  and  which  had 
been  placed  there  for  the  purpose  aforesaid ;  but  denies 
that  the  roof  was  then  very  leaky,  and  in  bad  repair;  he 
also  denies  that  bran,  or  shorts,  were  put  on  the  floor  to 
prevent  the  appraisers  from  knowing  the  real  state  and 
situation  of  the  roof.  When  the  appraisers  were  viewing 
the  garret  of  the  addition,  the  respondents  stated  to  them, 
or  one  of  them,  that  the  roof  leaked  in  some  places,  and 


47 


iheir  attention  was  drawn  thereto.  He  denies  that  the 
floor  of  the  garret  was  -very  much  stained  by  means  of  the 
leak ;  but  admits  there  were  several  stains  on  the  floor 
by  reason  thereof. 

The  respondent,  Joshua  Underbill,  separately  answer- 
ing, with  respect  to  the  matter  last  above  mentioned, 
gives  a  similar  statement. 

After  the  appraisers  had  viewed  and  examined  the  grist- 
mill, and  those  matters  and  things  appertaining  thereto, 
which  had  been  submitted  to  them,  sufficiently  to  make  up  a 
correct  judgment  of  their  value  ;  and,  also,  the  other  build- 
ings sufficiently  to  determine  their  value  to  be  more  than 
500  dollars  ;  and,  also,  after  they  had  heard  the  proofs  and 
allegations  which  were  produced  and  offered  by  the  parties; 
and,  also,  after  they  had  conferred  together  on  the  sub- 
ject of  the  appraisement  for  a  considerable  time,  but  be- 
fore they  had  made  up  their  report,  or  appraisement,  The- 
odorus  C.  Van  Wyck,  acting  as  the  agent  of  Pierre  Van 
Cortlandt,  deceased,  requested  of  the  appraisers  time  to 
produce  witnesses  to  prove  the  actual  cost  of  the  dam  and 
raceway.  That  David  Lydig  informed  him  he  did  not 
consider  such  testimony  relevant,  or  necessary,  as  the  ap- 
praisers were  called  to  determine  the  value  of  the  matters 
submitted  to  them,  and  not  what  they  might  originally 
have  cost  the  lessees.  Nathan  Anderson  and  Samuel 
Mott  did  not  object  to  the  observations  of  David  Lydig, 
but  appeared  to  concur  and  agree  therewith. 

The  respondents  deny  that  Theodoras  C.  Van  Wyck, 
offered  to  produce  testimony  to  the  appraisers  touching 
the  value  of  the  things  submitted  to  them  ;  or  that  David 
Lydig  refused  to  wait  and  hear  testimony  as  to  the  value 
of  the  things  submitted  to  the  appraisers  ;  or  that  David 
Lydig  refused  to  hear  any  testimony  which  Theodoras  C. 
Van  Wyck  offered,  or  pretended  to  be  able  to  produce. 

The  defendants  are  ignorant  of  what  passed  between 
the  appraisers  when  they  were  alone. 


48 


The  respondent,  Abraham  I.  Underbill,  answering  se- 
parately, says,  he  was  invited  into  the  room  where  the 
appraisers  were  conferring,  by  Samuel  Mott ;  and  that  the 
appellant,  Philip  Van  Cortlandt,  and  Theodorus  C.  Van 
Wyck,  who  were  present  when  such  invitation  was  re- 
ceived, went  into  the  room  with  him,  or  immediately  after 
he  had  entered  the  same  ;  but  he  denies  that  he  did  at 
that,  or  any  other  time,  have  any  ex  parte  communication 
with  the  appraisers  upon  the  subject  of  the  appraisement, 
while  they  were  conferring  on  that  subject.  He  admits 
that  some  question  was  asked  him,  by  Nathan  Anderson, 
relative  to  the  cost  of  the  dam  and  raceway,  to  which  he 
answered,  that  he  did  not  know  what  they  had  cost,  as  no 
separate  account  of  the  costs,  by  which  he  could  ascertain 
the  same,  had  been  kept  by  the  lessees,  and  only  an  account 
of  the  costs  of  the  whole  of  the  buildings  and  improve- 
ments. He  denies  that  he  did,  at  any  time,  make  any  false 
declarations  to  the  appraisers  respecting  the  matters  sub- 
mitted to  them  ;  or  that  he  told  any  of  the  appraisers  at 
that,  or  any  other  time,  that  the  dam  and  raceway  had 
cost  10,000  dollars;  or  that  the  mills,  or  the  mills  and 
whatever  appertained  thereto,  had  cost  10,000  dollars  ;  or 
that  he  possessed  no  account  of  the  expenses  of  the  build- 
ings and  improvements.  From  what  took  place  after  he 
went  into  the  room,  he  was  led  to  believe  that  Samuel 
Mott,  with  the  consent  of  the  other  appraisers,  had  called 
him  into  the  room  ;  and  that  the  appellant,  Philip  Van 
Cortlandt,  and  Theodorus  C.  Van  Wyck,  made  no  objec- 
tions to  his  being  called  into  the  room. 

The  respondent,  Joshua  Underhill,  in  answering  to  the 
matters  above  mentioned,  makes  a  similar  statement. 

The  dam,  raceway,  and  mills,  and  whatever  appertain- 
ed thereto,  cost  more  than  10,000  dollars,  and  in  the  opi- 
nion of  the  respondent,  the  same  cost  about  18,000  dol- 
lars, as  near  as  they  are  able  to  calculate,  as  no  separate 
account  of  the  costs  was  kept  by  the  lessees,  only  an  ac- 


49 


count  of  the  whole  expense  of  the  buildings  and  improve- 
ments, which  amounted  to  about  20,000  dollars. 

The  respondents  do  not  believe  that  the  appraisers,  or 
any  of  them,  determined  to  appraise  the  matters  and 
things  submitted  to  them,  at  any  sum  whatever,  previous 
to  their  having  first  ascertained  what  matters  appertained 
to  the  grist-mili,  and  the  value  thereof. 

The  respondents  have  understood,  and  believe,  the  ap- 
praisers did  ascertain  and  determine,  previous  to  making 
up  their  valuation,  what  matters  were  to  be  considered  as 
appertaining  to  the  grist-mill ;  and  that  the  appraisers,  in 
making  up  their  appraisement,  valued  separately  the  prin- 
cipal and  important  items  of  property  included  in  the  ap- 
praisement ;  and  that  the  same  were  not  appraised  at  once 
and  in  mass,  or  in  the  gross. 

They  deny  that  the  appraisers  included  in  their  appraise- 
ment, any  matter  or  thing  which  did  not  appertain,  and 
which  ought  not  to  be  considered  as  appertaining  to  the 
grist-mill. 

They  admit  that  the  appraisers  included  in  their  ap- 
praisement, the  dam  and  race-way ;  a  smut  machine  and 
wire  screen  in  the  grist-mill,  (which  were  then  fit  for  use,) 
and  also  the  patent  right  or  license  to  use  Evans'  machine- 
ry in  the  grist-mill,  with  seven  run  of  stones  :  but  they  do 
not  believe,  and  therefore  deny,  that  the  appraisers  valued 
the  license  for  more  than  six  run  of  stones ;  because  they 
informed  the  appraisers  they  meant  to  make,  and  did  make, 
a  present  to  the  lessors  of  the  right  to  use  machinery  for 
one  run  of  stones  more  than  the  mill  then  contained. 

They  do  not  believe,  and  therefore  deny,  that  the  saw- 
mill— or  the  floating  bridge — or  the  barrel-house,  were  in- 
cluded in  the  appraisement,  as  the  appraisers  were  inform- 
al by  the  respondents  the  same  were  not  intended  or  sub- 
mitted for  valuation  ;  nor  do  they  believe  that  the  roads 
mentioned  in  the  bill,  or  either  of  them,  were  included  in 
the  appraisement. 

7 


50 


They  admit,  that  Theodoras  C.  Van  Wyck,  as  the  agent 
of  Pierre  Van  Cortlandt,  objected  to  the  patent  rights  being 
included  in  the  appraisement ;  and  he  also  objected  to  the 
grist-mill  being  valued,  and  wished  the  same  might  be  re- 
moved from  olF  the  premises  by  the  respondents. 

The  defendants  do  not  know  whether  the  appraisers  va- 
lued separately  all  the  small  items  included  in  the  appraise- 
ment, nor  do  they  believe  that  was  necessary,  for  men,  ac- 
quainted with  mills,  to  make  up  a  correct  judgment  on  the 
matters  submitted  to  be  appraised.  They  admit  that  the 
amount  of  the  appraisement  was  increased  by  the  items 
above  mentioned  being  included,  but  cannot  say  to  what 
amount. 

In  the  judgment  and  belief  of  the  respondents,  the  grist- 
mill, and  whatever  appertained  thereto,  including  the  dam 
and  race-way,  and  excluding  the  other  items  above  men- 
tioned, exceeded  in  value  6,500  dollars,  at  the  time  of  the 
appraisement,  and  that  the  same  were  worth  full  as  much 
as  the  amount  at  which  they  were  appraised. 

The  respondents  do  not  believe  that  an  entire  new  dam 
and  raceway,  similar  to  those  made  by  the  lessees,  and  as 
permanent,  suitable,  and  valuable,  and  an  entire  new  grist- 
mill, and  saw-mill,  of  the  same  dimensions,  and  equally 
good,  and  with  the  same  number  of  run  of  stones,  and  with 
all  the  requisite  and  necessary  machinery,  could  have  been 
built  at  the  place  where  the  same  were  erected  by  the  les- 
sees, at  the  time  orthe  valuation,  for  less  than  30,000  dol- 
lars. 

The  respondents  deny  that  the  lessees  committed,  or 
suirerred  any  waste,  during  the  continuance  of  the  term,  as 
alleged  in  the  bill.  They  admit  that  the  little  mill,  and  so 
much  of  the  raceway  belonging  thereto,  as  was  then  re- 
maining, and  the  road,  leading  thereto,  being  useless,  and 
of  little  value,  were  not  kept  in  repair,  for  the  reasons 
above  mentioned  ;  and  that  the  mill-frame,  and  the  mate- 
rials belonging  thereto,  and  certain  articles  belonging  to 


51 

the  little  mill ;  and  the  loose  stones,  which  had  formed  a 
temporary  dam,  were  used  and  disposed  of,  as  herein  be- 
fore mentioned,  which  the  respondents  contend  the  lessees 
were  authorized  to  do,  and  that  the  same  was  done  with  the 
consent  and  approbation  of  the  lessors,  or  one  of  them. 

The  respondents  deny  that  any  land,  adjacent  to  the 
place  where  the  lessees  procured  the  principal  part  of  the 
stone  used  in  the  foundation  of  the  mills,  was  washed  away 
by  the  river,  and  materially  injured  by  reason  of  the  les- 
sees' having  removed  the  stone  used  by  them  ;  or  that  the 
land  has  been  washed  away,  or  injured,  so  as  to  unfit  it  for 
such  purposes  as  it  was  ever  fit  for.  The  respondent, 
Abraham  I.  Underbill,  says,  that  if  any  injury  was  done  to 
that  place  by  the  washing  of  the  river,  it  was  owing  to  the 
blasting  and  breaking  out  stones  for  the  foundation  of  the 
mill,  built  by  the  appellant,  Philip  Van  Cortlandt. 

The  respondents  admit  that  possession  of  the  premises 
was  not  delivered  until  the  times  mentioned  in  the  bill,  but 
contend,  that  they  had  a  right  to  hold  the  possession  until 
the  amount  of  the  appraisement  was  paid. 


To  this  answer  a  general  replication  was  filed.    On  the 
27th  day  of  May,  1816,  the  following  order  was  entered  in  order  to  a 

...  mend  cross 

the  cross  suit,  viz.  •>>»■ 


Philip  Van  Cortlandt,  and  others,  against  Abraham  I.  Un- 
derfill!, Joshua  Underbill,  Nathan  Anderson,  Samuel  Molt, 
and  David  Lydig. 

On  motion  of  Mr.  Monro,  of  counsel  for  the  complainants, 
it  is  ordered  that  the  complainants  have  leave  to  amend 
their  bill  of  complaint,  in  this  cause,  by  striking  out  the 
name  of  Nathan  Anderson,  as  a  defendant,  and  such  of  the 
allegations  contained  in  the  said  bill  of  complaint,  as  re- 
late to  the  said  Nathan  Anderson,  and  tend  to  charge  him 
as  a  defendant  thereto. 


52 


On  the  31st  day  of  May,  1816,  the  following  notice  was 
served  upon  the  solicitor,  for  the  respondents,  in  the  cross 
suit,  \  iz. 

Notice  that  IN  CHANCERY. 

cross  bill  had 
been  amend- 
ed. 

Philip  Van  Cortlandt,  and  others,  against  Abraham  I.  Un- 
derhill,  Joshua  Underhill,  Nathan  Anderson,  Samuel 
Molt,  and  David  Lydig. 

Sir, 

Please  to  take  notice,  that  pursuant  to  an  order  made 
in  the  above  cause,  on  the  27th  day  of  May,  instant,  the 
complainants  have  amended  their  bill  of  complaint,  in  the 
said  cause,  by  striking  out  the  name  of  Nathan  Anderson, 
as  a  defendant,  and  such  of  the  allegations  contained  in 
the  said  bill  of  complaint  as  relate  to  the  said  Nathan  An- 
derson, and  tend  to  charge  him  as  a  defendant  thereto  ; 
and  you  will  further  please  to  take  notice,  that  the  com- 
plainants require  no  further  answer  from  the  defendants, 
Abraham  I.  Underhill,  Joshua  Underhill,  Samuel  Mott, 
and  David  Lydig,  or  either  of  them,  and  are  ready  to 
amend  their  copy  of  the  said  bill  of  complaint.  Dated  the 
thirtieth  day  of  May,  181G. 

Yours,  &c, 

Wm.  N.  Dyckman,  Jun. 

Solicitor  for  the  Complainants. 

To  Robert  P.  L°e,  Esq.  Solicitor  for  Defendants, 
Abraham  I.  Uuderhill,  Joshua  Underhill,  Sa- 
muel Mott,  and  David  Lydig. 


Testimony       The  testimony  on  the  part  of  the  respondents  in  the 

on  the  |.art  J  1  r 

or  the  re   original  suit,  consists  of  exhibits,  A,  B,  C,  D,  E,  and  F  : 

^pondeots.  0  ' 

and  the  depositions  of  Samuel  Mott,  David  Lydig,  Robert 
Underhill,  Jesse  Field,  James  Burling,  Richard  I.  Field? 
Phebe  Field,  Henry  I.  Wyckoff,  John  Townsend,  William  ' 


53 


Thorn,  Edmund  Kirby,  Peter  Mesier,  Jacob  Wood,  and 
Richard  Mott. 

Exhibit  A,  is  the  conveyance  from  Thomas  Burling,  and  Exhibit  a. 
William  Burling,  to  the  respondents  and  Robert  Under- 
bill, dated  the  5th  day  of  February,  1799,  mentioned  in 
the  original  bill  of  the  respondents. 

Exhibit  B,  is  the  conveyance  from  Robert  Underbill  to  Exhibit  b. 
the  respondent  Abraham  I.  Underbill,  dated  the  1st  day 
of  May,  1804,  mentioned  in  the  original  bill  of  the  respon- 
dents. 

Exhibit  C,  is  the  conveyance  from  the  respondent,  Exhibit  c. 
Abraham  I.  Underbill,  to  the  respondent,  Joshua  Under- 
bill, dated  the  2d  day  of  May,  1804,  mentioned  in  the  ori- 
ginal bill  of  the  respondents. 

Exhibit  D,  is  the  agreement  between  the  respondents,  Exhibit  d. 
dated  the  19th  day  of  April,  1806,  mentioned  in  the  origi- 
nal bill  of  the  respondents.  , 

Exhibit  E,  is  the  letter  written  by  the  respondent,  Exhibit  e. 
Abraham  I.  Underbill,  to  the  appellant,  Philip  Van  Cort- 
landt,  and  Pierre  Van  Cortlandt,  deceased,  dated  the  30th 
day  of  January,  1813,  mentioned  in  the  original  bill  of  the 
respondents. 

Exhibit  F,  is  the  appointment  of  David  Lydig,  by  Na-  Exhibit  r. 
than  Anderson,  and  Samuel  Mott,  mentioned  in  the  answer 
of  the  respondents  to  the  appellants'  cross  bill,  and  there- 
in set  forth  in  hac  verba. 


Samuel  Mott  testifies  as  follows,  viz.  T 
To  the  8th  interrogatory,  the  deponent  proves  the  sig-  S 
nature  of  himself  and  Nathan  Anderson  to  Exhibit  F. 

To  the  11th  interrogatory,  the  deponent  was  the  person 
chosen  by  the  respondents,  as  one  of  the  appraisers,  as 
mentioned,  and  inquired  of  in  the  said  interrogatory.  Pre- 
vious to  the  appointment  of  David  Lydig,  as  the  third  per- 
son mentioned  and  referred  to  in  the  said  interrogatory, 
the  deponent,  and  Nathan  Anderson,  the  other  appraiser, 


51 


took  a  view  together  of  the  mills  and  appurtenances,  and 
other  buildings  inquired  of,  in  said  interrogatory  ;  and  the 
deponent  also  took  a  separate  view  thereof,  as  did  al-o 
Anderson,  previous  to  the  appointment  of  David  Lydig, 
before  mentioned.    The  deponent,  considering  the  busi- 
ness as  pretty  important,  took,  what  he  considered,  the  re- 
quisite time  for  examining  the  premises,  on  each  of  the  oc- 
casions aforesaid,  and,  to  the  best  of  his  recollection,  it  took 
about  one  or  two  hours,  at  each  time,  in  making  the  view 
aforesaid.    The  deponent  and  Anderson  conferred  toge- 
ther, relative  to,  and  about  the  value  of  the  premises,  afore- 
said, previous  to  the  appointment  of  Lydig;  and  finding, 
upon  such  conferrence,  that  there  wa9  no  likelihood  of  An- 
rson  and  the  deponent  coming  to  an  agreement  about 
the  value  of  the  said  mills,  appcirt^nances,  and  other 
buildings,  it  was  proposed,  but  by  which  of  them,  he  does 
not  recollect,  to  choose  a  third  appraiser:  the  deponent 
and  Anderson  then  proceeded  to  the  choice  and  appoint- 
ment of  a  third  appraiser,  and  they  thereupon  readily  and 
cordially  agreed,  to  the  choice  and  appointment  of  the  said 
David  Lydig,  and  the  same  was  done  with  the  entire  ac- 
quiescence of  the  deponent  and  Anderson. 

To  the  12th  interrogatory — After  the  appointment  of 
David  Lydig,  as  above  mentioned,  they,  the  aforesaid  three 
appraisers,  prev  ious  to  the  making  up  of  their  report,  pro- 
ceeded to  view  and  examine  the  said  mills,  and  whatever 
appertained  thereto,  several  times,  and  with  particular  at- 
tention ;  and,  at  the  same  time,  proceeded  to  hear  the 
proofs,  if  any,  and  allegations,  of  the  parties,  on  both  sides. 
The  respondents  attended  the  said  appraisers  in  person  ; 
and  Theodorus  Van  V/yck  attended  at  the  same  time,  as 
the  agent  of  the  appellant,  Philip  Van  Cortlandt,  and  the 
said  Pierre  Van  Cortlandt,  deceased,  together  with  the  ap- 
pellant, Philip  Van  Cortlandt.  The  deponent  does  not 
recollect  of  any  proofs  being  offered  or  submitted  by  either 
party  ;  but  that  the  allegations,  on  both  sides,  were  heard 


55 


by  the  said  appraisers ;  and  the  said  parties,  and  their 
agents,  as  aforesaid,  were  asked  by  the  said  appraisers,  if 
they  had  any  thing  more  to  offer  or  produce  to  them,  the 
said  appraisers,  before  they  retired  to  make  up  their  re- 
port, to  which  the  said  parties,  and  agent,  answered,  that 
they  had  nothing  further  to  offer. 

To  the  13th  interrogator)' — All  the  deponent  can,  recol- 
lect, relative  to  the  matters  inquired  of  in  the  said  interro- 
gatory is,  that  there  was  some  application  of  the  kind  made 
by  one  of  the  parties,  but  which  of  them,  does  not  recol- 
lect, and  he  remembers,  that  on  the  said  occasion,  both 
parties  were  called  in,  to  be  present,  and  were  present,  iu 

i  older  to  have  the  statement,  whatever  it  was,  but  the  de- 
ponent does  not  recollect  the  nature  thereof.  The  depo- 
nent is  certain  that  no  such  statement  was  made  to  the  ap- 
praisers, except  in  presence  of  both  parties,  or  of  some  one 
of  each  party,  or  their  agent. 

To  the  15th  interrogator)7 — After  the  said  appraisers 
had  retired,  in  order  to  make  up  their  report,  the  depo- 
nent recollects,  that  the  respondents,  together  with  The- 
odorus  C.  Van  Wyck,  the  agent  of  the  appellant,  Philip 
Van  Cortlandt,  and  the  said  Pierre  Van  Cortlandt,  de- 
ceased, were  admitted  into  the  room,  where  the  said  ap- 
praisers had  retired,  in  order  to  make  a  statement  of  some- 
thing which  they,  the  said  parties,  said  had  been  forgot : 
but  the  deponent  does  not  remember  of  any  conduct,  on 
the  part  of  Van  Wyck,  particularly  intrusive,  or  calculatol 
to  interrupt  the  said  appraisers,  though  his  general  conduct 

|  towards  them  was  not  very  respectful.  Upon  reflection, 
the  deponent  recollects,  that  Van  Wyck,  at  the  time  of  his 
appearing  before  the  appraisers,  as  last  mentioned,  assert- 
ed, that  the  mill-dam,  included  in  the  appraisement,  had 
not  cost  as  much  money  as  the  respondents  had  intimated, 
and  that  that  could  be  shown  as  a  fact,  and  urged  the 
appraisers  to  take  the  said  circumstance  into  considera- 
tion ;  to  which  the  said  appraisers  answered,  that  they 


56 


conceived  it  to  be  their  business  to  value  the  said  property, 
not  according  to  what  they  cost,  but  according  to  their 
present  value,  and  therefore  declined  to  take  into  consi- 
deration the  circumstance  urged  as  aforesaid  by  Van 
VVyck. 

Cross-ex  a  jWi.ved. 
To  the  4th  cross  interrogatory — The  deponent,  as  one 
of  (lie  appraisers  before  mentioned,  w  hen  he  undertook 
the  examination  of  the  mills,  and  appurtenances,  and  the 
other  buildings  referred  to,  made  a  general  and  minute  ex- 
amination of  the  same  ;  in  doing  which,  he  examined  the 
machinery  appertaining  to  the  said  mills,  in  order  to  as- 
certain the  state  of  repair,  and  value  of  the  same.  He  also 
examined  the  mill-stones,  and  the  bolting  cloths,  in'  the 
said  mills,  for  the  purpose  aforsaid.  He  also  examined  the 
raceways  appertaining  to  the  said  mills,  in  order  to  ascer- 
tain whether  the  same  were  built  and  constructed  in  the 
hest  manner,  and  also  to  ascertain  their  state  of  repair; 
and  he  also  examined  the  other  buildings  erected  upon  the 
said  premises,  so  as  to  ascertain  their  condition  and  state  of 
repair.  Nathan  Anderson,  the  other  appraiser,  was  pre- 
sent with  the  deponent,  and  joined  him  in  making  the  ex- 
aminations above  mentioned,  at  one  time  ;  but  the  depo- 
nent, at  another  time,  as  such  appraiser,  repeated  the  said 
examination  without  the  presence  of  Anderson.  As  the 
deponent  has  before  mentioned,  he  and  Anderson,  confer- 
red together,  relative  to  the  matters  in  question,  previous 
to  the  appointment  of  David  Lydig;  that  they  each  affix- 
ed a  particular  value  upon  the  said  mills,  and  appurtenan- 
ces, and  the  other  buildings,  and  communicated  the  same 
to  one  another ;  at  least  the  deponent  recollects,  that  he 
communicated  his  valuation  to  Anderson  ;  and  he  remem- 
bers that  they  did  not,  and  were  not  able  to  agree  on  the 
subject ;  but  he  does  not  recollect  what  was  the  amount  of 


.57 


their  respective  valuations,  though  he  remembers  that  they 
disagreed  relative  to  all  the  subjects  of  valuation. 

To  the  5th  cross  interrogatory — The  deponent  saith,  that 
after  the  appointment  of  David  Lydig,  they,  the  said  ap- 
praisers, met  together,  some  time  in  the  month  of  June,  in 
the  same  year,  and  proceeded  to  make,  and  did  make,  a 
thorough  and  particular  examination  of  the  mills,  appurte- 
nances, and  other  buildings,  in  much  the  same  manner  as 
the  deponent,  and  Anderson,  had  done  before,  as  above  re- 
lated ;  and  that  upon  making  such  examination,  they  ex- 
amined in  a  particular  manner  the  foundations  of  the  said 
mills,  and  of  the  other  buildings,  and  the  timber  com- 
posing the  frames  of  the  same,  so  as  to  ascertain  their  con- 
dition and  state  of  repair ;  that  he  remembers  they  had 
some  of  the  timber  in  question  cut,  in  order  to  ascertain 
the  soundness  of  the  same,  particularly  the  floor  beams  ; 
but  he  does  not  recollect  that  the  dimensions  of  the  said 
mills,  and  other  buildings,  were  measured  on  that  Occa- 
sion, they,  the  said  appraisers,  being  informed,  by  both 
parties,  of  such  dimensions  ;  and  the  deponent  further 
saith,  that  he  remembers  they,  the  said  appraisers,  also  ex- 
amined, on  that  occasion,  the  water  wheels,  cog  wheels, 
and  other  wheels,  and  the  shafts  of  the  same,  and  other 
parts  of  the  machinery,  so  as  to  ascertain  their  condition, 
fitness,  and  state  of  repair ;  but  he  does  not  recollect  that 
the  shafts,  aforesaid,  were  cut  or  bored,  in  order  to  ascer- 
tain their  soundness  ;  that  they,  in  like  manner,  proceed- 
ed to  examine  the  bolting  cloths,  and  mill  stones,  the  lat- 
ter of  which  they  caused  to  be  taken  up  for  the  purpose  of 
examining  the  same,  but  he  is  not  certain  that  all  the  mill 
stones  were  taken  up ;  that  they  also  examined  the  race- 
ways in  question,  so  as  to  ascertain  their  condition  and  state 
of  repair  ;  and  the  deponent  further  saith,  that  he  does  not 
remember  the  particular  sums  at  which  they,  the  said  ap- 
praisers, valued  each  of  the  said  mills,  appurtenances,  and 
buildings  as  inquired  of,  as  he  did  not  keep  memorandums 

8 


58 


thereof;  that,  in  making  their  valuation,  the  premises 
which  were  to  be  included  therein,  together  with  the  ap- 
purtenances, were  pointed  out  to  the  appraisers  by  the 
parties  concerned  ;  and  that  the  licenses,  or  patent  rights, 
as  mentioned  in  said  interrogator)',  were  considered  -as 
part  of  the  machinery,  and  as  appurtenances  of  said  mills, 
and  were  comprised  in  the  valuation  accordingly  ;  that  he 
remembers  there  was  a  complete  set  of  said  licenses,  or 
patent  rights,  but  he  does  not  know  at  what  sum  they  va- 
lued the  same,  nor  docs  he  know  of  their  being  distinct 
and  separate  licenses,  or  patent  rights,  as  inquired  of  in 
the  said  interrogatory,  nor  does  he  know  that  there  was 
a  separate  right  for  every  run  of  stones  ;  and  to  the  other 
queries  in  the  said  interrogatory,  relative  to  the  said  li- 
censes, or  patent  rights,  the  deponent  cannot  depose,  as_- 
he  recollects  nothing  on  that  subject ;  the  deponent  does 
not  recollect  of  any  allowance  having  been  made  for  the 
stones  composing  the  foundations  of  the  mills,  and  other 
buildings,  as  inquired  of;  and,  lastly,  the  deponent  saith 
that,  as  they  considered  it  their  business  to  value  the  pro- 
perty in  question  as  it  then  stood,  they  had  no  reference 
to  any  alterations,  or  repairs,  as  inquired  of  in  the  said  in- 
terrogatory. 

To  the  8th  cross  interrogatory — The  deponent  saith. 
that  he  does  not  recollect  any  thing  more,  in  particular, 
relative  to  Theodorus  C.  Van  Wyck's  appearing  before 
the  appraisers,  than  as  he  has  already  mentioned  in  his 
direct  expmination,  nor  does  he  recollect  that  any  thing 
was  said  by  him  on  the  subject  of  the  licenses,  or  patent 
rights,  as  inquired  of  in  said  interrogatory. 

To  the  9th  cross  interrogatory — The  deponent  saith, 
that  he  is  neither  a  carpenter,  mason,  millwright,  or  other 
mechanic. 

David  Lydig  testifies  as  follows,  viz. 
«ig.  "°Ly     To  the  19th  interrogatory — The  deponent  saith,  that 


59 


some  time  in  the  summer  of  the  year  1 813,  he  received  a 
note  in  writing,  signed  by  Samuel  Mott,  and,  he  believes, 
also  by  Nathan  Anderson,  though  he  is  not  certain  as  to 
the  latter  circumstance,  informing  the  deponent  that  they 
had  chosen  him  to  act  with  them  to  value  and  appraise 
the  mills  and  appurtenances  mentioned,  and  referred  to 
in  the  said  interrogatory  ;  but  the  deponent  having  mislaid 
the  said  note,  is  not  able  to  recollect  the  particulars  there- 
of.    The  deponent,  together  with  Mott  and  Anderson, 
met,  accordingly,  on  the  premises  sometime  in  or  about 
the  month  of  July,  1813,  when  they  viewed  the  said  mills, 
appurtenances,  and  other  buildings,  and  particularly  a 
raceway,  of  which  they  took  a  very  particular  view,  on  ac- 
count of  its  importance,  and  the  apparent  labour  and  ex- 
pense with  which  it  had  been  made.     That  the  parties 
interested  in  the  appraisement  attended  on  that  occasion, 
except  Pierre  Van  Cortlandt,  deceased,  who  did  not  at- 
tend in  person,  but  was  represented  by  Theodorus  C.  Van 
Wyck,  as  the  deponent  then  understood,  and  who  attend- 
ed in  his  place  and  stead  ;  '>ut  the  deponent  is  not  certain 
that  the  appellant,  Philip  Van  Cortlandt,  was  present  all 
the  time.    The  deponent  further  saith,  that  they,  the  said 
appraisers,  before  they  made  up  their  report,  heard  both 
parties,  that  is  to  say,  the  respondents  in  person,  and  the 
appellant,  Philip  Van  Cortlandt,  and  the  said  Pierre  Van 
Cortlandt,  deceased,  either  in  person,  or  by  Theodorus  C. 
Van  Wyck,  the  agent,  or  representative  aforesaid,  of  them, 
or  one  of  them.    The  deponent  does  not  recollect  that 
the  said  parties  were  particularly  asked  by  the  appraisers, 
or  either  of  them,  if  they  had  any  thing  further  to  offer,  as 
is  inquired  of  in  the  said  interrogatory  ;  but  the  deponent 
well  remembers,  that  the  said  appraisers,  previous  to  the 
making  up  of  their  report,  sat,  and  waited  a  considerable 
time,  in  order  to  give  all  the  said  parties  time  and  oppor- 
tunity to  offer  such  statements  and  allegations,  and  pro- 
duce such  proofs,  as  they  might  have  in  their  power,  rela- 


60 


live  to  the  costs  and  value  of  the  said  mills,  premises,  and 
appurtenances,  The  deponent  does  not  recollect  that 
any  of  the  paid  parties  asked  for  further  time  for  the  pur- 
pose aforesaid  ;  and  he  is  certain,  that  if  they  had  request- 
ed such  further  time,  the  said  appraisers  would  have  al* 
lowed  it. 

To  the  14th  interrogatory — The  deponent  saith  that,  U 
the  best  of  his  recollection,  he  thinks  that,  after  the  afore- 
said parties  had  withdrawn  and  left  the  said  appraisers  to 
themselves,  in  order  to  make  up  their  report,  the  said  ap- 
praisers 6ent  for  the  respondents,  or  one  of  them,  to  ask 
them  if  the  other  mill,  to  wit,  the  mill  in  the  possession  of 
the  appellant,  Philip  Van  Cortlandt,  was  to  be  included  in 
the  appraisement ;  and  he  also  recollects,  that  the  appel- 
lant, Philip  Van  Cortlandt,  was  also  sent  for  at  the  same 
time,  for  the  purpose  of  asking  him  the  same  question,  and 
that  they,  the  said  parties,  came  accordingly,  but  whether 
they  were  both  present  at  the  same  time,  on  that  particu- 
lar occasion,  the  deponent  does  not  recollect,  but  he  very 
well  remembers  that  both  the  said  parties  did,  upon  that 
occasion,  consent  that  the  other  mill,  aforesaid,  should  be 
included  in  the  said  appraisement ;  but  further  to  the  said 
interrogatory  the  deponent  cannot  depose. 

To  the  15th  interrogatory — The  deponent  saith,  that  he 
does  not  recollect  that  the  aforesaid  Theodorus  C.  Van 
Wyck  came  before  them,  the  said  appraisers,  while  they 
were  deliberating  or  making  up  their  report,  more  than 
once,  and  that  he  does  not  remember  whether  or  not  his 
coming,  as  aforesaid,  was  considered  by  the  arbitrators  as 
intrusive,  nor  does  he  recollect  for  what  particular  pur- 
pose he  so  came. 

To  the  20th  interrogatory — The  deponent  saith,  that 
he  does  not  recollect,  nor  does  he  believe,  that  the  said 
appraisers  at  any  time  refused  to  receive  further  testimony, 
offered,  or  ready  to  be  offered,  by  either  of  the  parties, 
or  by  the  said  Theodorus  C.  Van  Wyck.  relative  to  the 


61 


matters  in  question,  as  long  as  the  said  testimony  or  state- 
ment appeared  to  have  any  bearing  on  the  said  appraise- 
ment ;  that  no  witnesses  were  produced  or  offered  for  the 
purpose  of  proving  the  cost  or  value  of  the  premises  in 
question  ;  and  further  to  the  said  interrogatory  he  cannot 
depose. 

CROSS-EXAMINED. 

To  the  fifth  cross  interrogatory — The  deponent  saith, 
that,  as  he  has  already  mentioned  in  his  answer  to  the  1 9th 
direct  interrogatory,  he,  together  with  the  other  two  ap- 
praisers, met  on  the  premises  in  question,  and  the  depo- 
nent, and  Mott  and  Anderson,  then  proceeded  to  view  and 
examine  the  mills,  buildings,  and  appurtenances  in  ques- 
tion, together  with  the  raceway ;  and  the  deponent  fur- 
ther saith,  that  they  examined,  on  that  occasion,  the  said 
mills,  and  the  appurtenances,  in  a  pretty  careful  manner, 
and  he  remembers  that  they  viewed  the  foundations  of  the 
mills  of  the  respondents,  but  he  does  not  recollect  of  examin- 
ing the  foundation  of  the  other  mills,  or  the  foundation  of  the 
other  buildings,  nor  does  he  recollect  that  the  timber  com- 
posing the  frames  in  question  was  examined  in  the  parti- 
cular manner  inquired  of  in  the  said  interrogatory,  but  he 
remembers  that  they  carefully  viewed  the  same,  and  the 
deponent  recollects  that  the  dimensions  of  said  mills  and 
buildings  were  ascertained  by  the  appraisers,  by  inquiring 
of  the  parties,  who,  accordingly,  informed  them  of  the 
said  dimensions.  The  deponent  saith,  that  the  wheels  in 
question  were  viewed  and  examined  into  on  that  occasion, 
and  he  recollects  making  inquiries  as  to  the  length  of  time 
the  water  wheels  had  been  running,  in  order  to  ascertain 
their  condition,  but  that  he  does  not  recollect  that  any  of 
the  wheels  aforesaid,  or  shafts,  were  bored,  as  inquired  of 
in  the  said  interrogatory.  The  deponent  remembers  that 
the  mill-stones  in  question,  and  bolts,  were  examined  and 
taken  into  consideration,  but  he  does  not  recollect  that 


62 


every  bolt  and  every  stone  was  particularly  examined. 
The  deponent  further  saith,  that  the  raceway,  or  ways 
in  question,  were  particularly  examined,  and  were  found 
to  be  in  good  order.    The  deponent  is  not  able  to  recol- 
lect the  particular  sums  at  which  they  valued  each  of  the 
said  mills,  appurtenances,  and  buildings,  as  inquired  of  in 
the  said  interrogatory,  but  he  thinks  the  same  are  particu- 
larly stated  in  the  award  ;  that  certain  patent  rights,  as 
mentioned  in  said  interrogatory,  were  considered  by  them, 
the  said  appraisers,  as  appurtenances  to  said  mills,  and 
they  considered  the  said  patent  rights  as  embracing  each 
and  every  run  of  stones  then  in  the  mills  of  the  respon- 
dents, and  more  particularly  to  the  said  interrogatory,  as 
to  the  number  and  value  of  the  patent  rights  in  question, 
the  deponent  is  not  able  to  depose  other  than  as  he  has 
already  mentioned,  and  that  he  does  not  recollect  of  any 
particular  evidence  being  produced  as  to  the  reapondents 
possessing  said  patent  rights,  it  being  a  thing  admitted  by 
both  parties,  and  he  remembers  that  Mr.  Van  W yck,  or  one 
of  the  parties,  made  some  objections  to  paying  for  the  said 
patent  rights ;  and  the  deponent  further  saith,  that  the 
said  appraisers  did  nx>t  allow  any  sum  of  money  for  the 
siones  of  the  foundations  of  the  mills  and  buildings,  nor 
does  he  recollect  that  any  sum  was  allowed  for  alterations 
or  repairs  in  the  said  mills,  dams,  and  raceways,  as  inquir- 
ed of  in  the  said  interrogatory. 

To  the  eighth  cross  interrogatary — The  deponent  saith, 
that  he  has  already  answered  the  matters  inquired  of  in 
the  first  part  of  the  said  interrogatory  in  his  deposition  to 
the  fifteenth  direct  interrogatory,  but  the  deponent  does 
not  recollect  the  particular  reason  Van  Wyck  alleged  for 
appearing  before  the  appraisers,  as  particularly  inquired 
of  in  the  said  interrogatory. 

To  the  tenth  cross  interrogatory — The  deponent  saith, 
that  he  is  neither  carpenter,  mason,  millwright,  nor  any 
other  mechanic. 


63 


Robert  Underbill  testifies  as  follows,  viz.  orTa'!"£* 

To  the  16th  interrogatory— The  deponent  has  been  Us<,ert,i"- 
pretty  well  acquainted  with  Samuel  Mott  for  about  twenty 
years  ;  his  reputation  and  standing  in  society  as  a  man  of 
probity,  capacity,  and  discretion,  is  unexceptionable  ;  the 
deponent  has  always  considered  him,  and  he  believes  he 
is  generally  considered  and  esteemed,  a  good  and  compe- 
tent person  to  form  a  judgment  of  the  value  of  mills,  and 
their  appurtenances,  on  account  of  the  experience  he  has 
had  in  the  milling  business. 

To  the  17th  interrogatory — The  deponent  is  not  per- 
sonally acquainted  with  David  Lydig,  though  he  has  seen 
him  once.  7'he  deponent  used  to  hear  him  frequently 
spoken  of,  as  a  man  extensively  engaged  in  establishing 
mills  and  manufacturing  flour,  and  has  understood  him  to 
be  an  active  and  intelligent  man  ;  for  which  reasons  the 
deponent  is  of  opinion  that  the  said  David  Lydig  is  a  com- 
petent person  to  form  a  correct  estimate  of  the  value  of 
mills,  and  their  appurtenances. 

To  the  18th  interrogatory — The  deponent  has  been  ac- 
quainted with  the  miHs  in  question  from  the  time  they 
were  first  began  to  be  built,  and  he  assisted  in  erecting 
the  same  ^  he  is  also  acquainted  with  the  appurtenances 
and  other  buildings.  The  deponent,  from  his  intimate 
knowledge  of  the  mills  and  appurtenances  in  question,  (he 
having,  in  the  year  1304,  an  interest  in  the  same,  which 
he  afterwards  sold  out,)  is  of  opinion  that  the  same  were 
worth,  on  the  1st  day  of  May,  1813,  not  less  than  between 
seventeen  and  eighteen  thousand  dollars. 

CROSS-EXAMINED. 

To  the  second  cross  interrogatory — The  respondents  are 
brothers  of  the  deponent. 

To  the  sixth  cross  interrogatory — The  deponent  saith, 
that  about  the  period  of  time  when  the  mills,  building*, 
£  and  appurtenances,  were  appraised  as  before  mentioned, 


61 


he  used  frequently  to  be  on  the  premises,  and,  occasion- 
ally, in  the  mills,  and  that  although  when  he  was  in  the 
said  mill,  on  the  occasions  aforesaid,  he  took  a  general 
view  of  the  condition  thereof,  yet  he  did  not  bestow  a  mi- 
nute examination  on  every  part  of  the  same,  such  as  the 
condition  of  the  bolting  cloths  and  gudgeons,  but  that,  as 
he  had  been  concerned  in  building  the  said  mills,  as  he  has 
before  mentioned,  he  generally,  when  he  visited  the  same, 
felt  some  curiosity  to  see  the  state  of  the  wheels  and  ma- 
chinery, and  to  observe  what  parts  of  the  same  remained 
as  before,  and  what  repairs  and  additions  had  been  made 
thereto  by  the  respondents ;  and  the  deponent  does  not 
recollect  perceiving  any  deficiency  therein,  and  the  whole 
establishment  appeared  to  be  kept  in  pretty  good  repair. 
And  the  deponent  further  saith,  that  there  was  a  saw-mill 
on  the  premises  in  question,  at  the  period  inquired  of,- 
which  had  not  been  used  for  some  time,  and  had  gone  con- 
siderably to  decay ;  that  the  dimensions  of  the  grinding- 
mill  were  fifty-one  feet  by  sixty  ;  that  the  saw-mill  was  cal- 
culated for  two  separate  saws  and  carriages ;  and  that  the 
barrel-house  and  cooper's  shop  were  not  large  ;  and  the 
deponent  saith  that,  in  viewing  the  mills,  as  before  men- 
tioned, he  observed  that  a  new  sill  had  been  put  under  one 
side  of  the  said  mills,  and  he  believes  that  one  of  the  gird- 
ers, or  floor  beams,  was  not  sound  when  it  was  originally 
put  in  at  the  erection  of  the  mills ;  that  as  to  the  mill- 
stones, the  deponent  knew  them  to  be  good  when  first  put 
in,  and  that  they  were  also  good  in  the  year  1304,  and  the 
deponent  has  no  reason  to  suppose  that  they  were  not  good 
at  the  time  of  the  appraisement  aforesaid,  though  he  did 
not  examine  the  same  ;  that  he  believes  the  raceways  were 
also  in  good  order,  though  the  view  he  took  of  them  was 
seneral  ;  that  the  shafts  appeared  to  be  as  good  as  ordi- 
nary, but  that  he  did  not  see  the  same,  nor  the  frames 
composing  the  buildings,  bored,  as  inquired  of  in  the  said 
interrogatory,  though  he  has  understood  that  the  appel- 


65 


lant,  Philip  Van  Cortlandt,  and  the  said  Pierre  Van  Cort- 
landt,  deceased,  the  year  after  the  appraisement,  found  it 
necessary  to  have  a  new  shaft  made  for  one  of  the  water- 
wheels,  and  they  also  had  to  repair  one  of  the  cog-wheels. 
And  the  deponent  saith,  that  the  mills  and  buildings  in 
question  were  erected  about  the  year  1792  and  1793  ;  and 
the  deponent  further  saith,  that  he  being  originally  the 
owner  of  one  third  part  of  the  mills  and  premises  in  ques- 
tion, he  sold  his  said  interest  to  one  of  the  respondents,  in 
the  year  1 804,  for  six  thousand  dollars,  which  he  consider- 
ed a  fair  and  a  reasonable  price,  and  that  afterwards  an 
improvement  was  made  by  raising  the  stone  foundation  of 
the  additional  part  of  the  mill  by  putting  stones  in  the 
place  of  pine  logs  which  they  had  bought ;  and  the  depo- 
nent saith,  that  as  to  the  particular  value  of  each  of  the 
buildings  in  question,  he  is  not  able  to  form  an  estimate  ; 
that  he  considers  the  patent  rights  mentioned  in  said  in- 
terrogatory as  appertaining  to  the  said  mills,  but  he  does 
not  recollect  the  value  of  the  same,  nor  how  much  was 
originally  paid  therefor,  nor  the  particular  number  of  them, 
but  that  a  set  in  question  was  purchased  for  a  mill  carry- 
ing six  run  of  stones. 

To  the  seventh  cross  interrogatory — The  deponent 
saith,  that  he  was  one  of  the  co-lessees,  as  inquired  of  in 
the  said  interrogatory,  and  that  the  mills,  dam,  and  race- 
way, were  begun  in  the  year  1792,  but  the  same  were  not 
completed  till  between  three  and  four  years  afterwards, 
the  raceway  being  a  very  difficult,  laborious,  and  expen- 
sive operation,  as  it  was  dug  along  the  side  of  a  very  high 
and  steep  bank  or  hill,  which  fell  in,  by  means  of  the  rains 
and  frosts,  at  two  different  times,  filling  the  raceway  nearly 
full  the  greatest  part  of  the  way  with  earth,  rocks,  and 
stones,  so  that  it  was  between  three  and  four  years  before 
the  same  became  fixed  and  in  good  order  ;  and  the  depo- 
nent further  saith.  that  part  of  the  timber  used  in  erecting 
the  mills  and  appurtenances  in  quosiion  was  procurfl 


06 


from  off  the  demised  premises,  such  as  some  of  the  small- 
er timber  used  for  the  dam  and  flues,  but  that  the  rest  of 
the  timber  used  in  building  the  mill  and  dam,  and  other 
buildings,  was  procured  from  other  lands  belonging  to  the 
appellant,  Philip  Van  Cortlandt,  and  the  said  Pierre  Van 
Cortlandt,  deceased,  and  which  timber  land  was  pointed 
out  by  them  for  that  purpose,  but  that  when  they,  the 
lessees,  enlarged  the  mill,  they  sawed  up  a  number  of  logs, 
for  that  purpose,  of  their  own,  which  they  had  bought  of 
other  persons,  and  that  a  large  flume,  near  a  hundred  feet 
in  length,  and  one  of  the  small  dwelling-houses,  were  built 
with  considerable  proportion  of  pine  timber,  purchased 
by  the  lessees,  and  the  large  dwelling-house  also  contained 
a  considerable  proportion  of  pine,  in  like  manner  ;  that 
most  of  the  stone  used  for  the  foundation  of  the  mills,  the 
dam,  raceway,  &c.  was  taken  from  the  demised  premises, 
and  the  rest  was  taken  from  other  lands  of  the  appellant, 
Philip  Van  Cortlandt,  and  the  said  Pierre  Van  Cortlandt, 
deceased,  which  they  pointed  out,  but  the  deponent  saith, 
that  he  knows  of  no  compensation  being  made  to  them  for 
the  timber  and  stone  above  mentioned,  and  that  he  is  not 
able  to  recollect,  nor  does  he  believe  it  is  in  his  power  to 
ascertain  the  true  and  actual  costs  of  building  and  erecting 
the  said  mills,  dams,  raceway,  and  other  buildings,  as  in- 
quired of  in  the  said  interrogatory  ;  but  the  deponent  fully 
believes,  according  to  the  best  of  his  knowledge  and  re- 
collection, that  the  actual  cost  of  making  and  erecting  all 
the  premises  aforesaid,  was  between  fifteen  and  twenty 
thousand  dollars,  but  the  particular  cost  of  the  whole,  or  of 
each  separate  building,  &:c.  he  is  not  able  to  state  or  as- 
certain ;  but  the  deponent  saith  that,  at  the  time  of  erecting 
the  premises,  materials  were  much  cheaper  than  afterwards, 
and  that  the  best  labourers  were  to  be  hired  for  three  shil- 
lings per  day,  and  finding  them  with  provisions,  house-car- 
penters from  four  and  six-pence  to  five  shillings,  and  mill- 
wrights from  six  to  eight  shillings.    And  the  deponent  fur- 


67 


ther  saith,  that  he  does  not  believe  that  he  ever  declared, 
or  said,  that  the  making  of  the  principal  raceway  in  ques- 
tion cost  the  sum  of  only  one  thousand  dollars,  because  he 
always  believed,  since  it  was  finished,  that  it  cost  a  great 
deal  more  ;  that  he  has  not  seen,  for  twelve  years  past, 
the  books,  accounts,  and  memorandums  inquired  of  in  the 
said  interrogatory,  nor  does  he  know  in  whose  possession 
the  same  are,  or  have  been,  for  some  years  past,  nor  what 
has  become  of  the  same. 

To  the  eleventh  cross  interrogatory — The  deponent 
saith  that,  in  erecting  the  mills,  dams,  &c.  the  lessees 
aforesaid  used  some  of  the  timber  growing  on  the  demised 
premises,  as  he  has  already  mentioned,  and  that  the  timber 
that  was  afterwards  used  for  making  alterations,  additions, 
and  repairs,  to  and  in  the  mills,  and  whatever  else  apper- 
tained thereto,  was  procured  from  other  lands  belonging 
to  the  defendant;  that,  from  the  year  1794  until  1804, 
some  timber  was  used  almost  every  year  for  repairs,  but 
the  particular  quantity  so  used,  or  particular  times  when 
taken,  he  does  not  recollect ;  and  that  in  widening  the 
mill,  the  timber  was  procured,  not  from  the  demised  pre- 
mises, but  from  other  lands  belonging  to  the  appellant, 
Philip  Van  Cortlandt,  and  the  said  Pierre  Van  Corllandt, 
deceased,  but  the  stone  was  taken  from  the  demised  pre- 
mises ;  that  the  said  timber,  or  rather  the  greatest  part 
of  it,  was  procured  from  a  piece  of  timber  land  belonging 
to  the  appellant,  Philip  Van  Cortlandt,  and  the  said  Pierre 
Van  Cortlandt,  deceased,  about  two  miles  off,  which  they 
described  as  on  the  hill  above  Staats  Williams,  but  the 
deponent  is  not  able  to  form  an  estimate  of  the  value  ci 
the  timber  so  used  for  repairs,  additions,  &c.  ;  he,  how- 
ever, thinks,  according  to  the  best  of  his  recollection  and 
judgment,  that  the  value  of  the  whole  of  the  timber  used, 
as  before  mentioned,  in  erecting,  altering,  and  repairing 
the  mills,  and  all  other  appurtenances,  as  the  same  timber, 
stood  growing,  was  about  three  hundred  and  fifty  dollarj. 


68 


Jesse  Field  testifies  as  follows,  viz. 
i°f    To  the  4th  interrogatory — The  deponent  proves  the  ex- 
ecution of  the  conveyance  marked  Exhibit  B,  by  Robert 
Underbill. 

To  the  6th  interrogatory — The  deponent  proves  the 
signature  of  the  respondents  to  the  agreement  between 
them,  marked  Exhibit  D. 

To  the  7th  interrogatory — The  deponent  proves  the 
signature  of  the  respondent,  Abraham  J.  Underbill,  to  the 
paper  marked  Exhibit  E. 

To  the  9th  interrogatory — The  deponent  saith,  that  a 
short  time  before  the  persons  appointed  to  appraise  the 
mills,  &c.  in  question,  came  to  the  place  for  the  purpose, 
the  deponent  went  with  the  respondent,  Abraham  I.  Un- 
derbill, to  the  house  of  the  appellant,  Philip  Van  Cort- 
landt,  and  the  said  Pierre  Van  Cortlandt,  deceased,  when 
the  said  Abraham  handed  to  the  appellant,  Philip  Van 
Cortlandt,  a  paper  writing,  purporting,  as  the  deponent 
understood  from  the  6aid  Underbill,  the  authorising  the 
appraisers  to  value  the  timber  used  in  the  mills,  as  inqui- 
red of  in  the  said  interrogatory  ;  that  the  said  Philip  ta- 
king the  paper,  and  appearing  to  look  it  over,  then  said, 
"  well,  what  of  all  that,"  or  words  of  that  import,  to 
which  the  said  Abraham  answered,  that  as  the  lease  did 
not  point  out  in  what  manner  the  value  of  the  timber  was 
to  be  ascertained,  he  thought  it  would  be  best  for  them  to 
authorize  the  appraisers  of  the  mills  to  value  the  timber 
also,  or  words  to  that  effect,  to  which  the  said  Philip  re- 
plied, I  will  never  sign  another  paper  respecting  the  bu- 
siness, or  words  to  that  effect. 

To  the  IGth  interrogatory — The  deponent  saith,  that 
he  is  acquainted  with  Samuel  Mott,  and  has  been  acquaint- 
ed with  him  between  20  and  30  years  ;  that  the  reputation, 
and  standing  in  society,  of  the  said  Samuel  Mott,  as  a  man 
of  probity,  understanding,  and  discretion,  is  fair  and  good  ; 
<hat  he  is  a  man  of  great  experience  in  the  milling  birsj- 


69 


ncss,  and  building  of  mills,  and  is  generally  considered,  a? 
the  deponent  considers  him,  a  good  and  competent  person 
to  form  a  correct  judgment  of  the  value  of  mills,  and  their 
appurtenances. 

To  the  17th  interrogatory — The  deponent  saith,  that 
he  is  acquainted  with  David Lydjg,  and  that  he  has  been  ac- 
quainted with  him  a  considerable  number  of  years  ;  that  the 
said  David  Lydig  is  esteemed,  in  society,  as  a  man  of  pro- 
bity, good  understanding  and  discretion,  and  has  very  great 
experience  in  the  milling  business,  and  in  the  building  of 
mills  ;  and  from  his  experience,  as  aforesaid,  the  depo- 
nent considers  him  as  a  person  perfectly  competent  to 
form  a  correct  opinion  of  the  value  of  mills  and  their 
appurtenances,  as  much  so  as  any  man  in  the  state  of 
New- York. 

To  the  18th  interrogatory — The  deponent  saith,  that 
he  is  well  acquainted  with  the  mills,  appurtenances,  and 
other  buildings  mentioned  and  referred  to  in  the  said  in- 
terrogatory, the  deponent  having  lived  at,  and  near,  the 
said  mills  for  upwards  of  twenty  years,  and  that,  in  his 
opinion,  the  value  of  the  said  mills,  and  whatever  apper- 
tained thereto,  and  the  other  buildings,  on  the  1st  day  of 
May,  1813,  was  18,500  dollars,  including  the  dwelling 
house. 

CROSS  EXA MIXED. 

To  the  2d  cross  interrogatory — The  deponent  saith. 
that  he  is  related  to  the  respondents,  by  the  circumstance 
of  the  deponent's  mother,  and  the  mother  of  the  respon- 
dents being  half  sisters  ;  and,  further,  that  the  respondent 
Abraham  I.  Underbill,  married  the  deponent's  daughter. 

To  the  3d  cross  interrogatory — The  deponent  sailh,  he 
did  not  examine  the  paper  mentioned,  and  referred  to,  i:> 
the  said  interrogatory  ;  and  that  the  last  time  he  siw  it. 
was  at  the  time  when  the  said  Abraham  !.  L'iiijeruiil  s-iiow- 


70 


ed  the  same  to  the  aforesaid  Philip  Van  Cortlandt,  as  tin 
deponent  has  before  mentioned ;  and  to  the  best  of  tho 
deponent's  recollection,  the  said  Philip  returned  it,  at  the 
time,  to  the  said  Abraham,  who  brought  it  away  with  him  ; 
and  the  deponent  saith,  that  he  has  already  mentioned  in 
his  answer  to  the  ninth  direct  interrogatory,  all  that  he  is 
able  to  recollect  of  what  was  said,  or  took  place,  by,  and 
between,  the  said  Abraham  and  Philip,  at  the  time  in  ques- 
tion ;  and  that  he  does  not  recollect  that  any  other  person 
was  present  at  the  time. 

To  the  6th  cross  interrogatory — The  deponent  saith, 
that,  as  to  the  mills  and  appurtenances  in  question,  when 
the  same  were  begun  to  be  built,  he  was  a  partner  with 
the  respondents  in  the  milling  business,  and  personally 
assisted  in  building  the  said  mills,  and  has  often  viewed 
and  examined  the  same  since,  and  particularly  at  the  time 
when  the  appraisement  in  question  was  made  ;  that  to  the 
best  of  the  deponents  recollection,  when  the  said  mill  was 
first  built,  it  was  sixty  feet  long,  and  thirty  feet  wide ;  and 
that,  afterwards,  there  was  an  addition  of  about  twenty- 
one  feet,  to  the  best  of  his  recollection,  made  to  the  width 
aforesaid,  and  the  said  mill  contained  six  run  of  stones  at 
the  time  of  the  appraisement ;  and  the  deponent  further 
saith,  that  about  the  time  when  the  appraisement  in  ques- 
tion was  making,  he  examined  the  said  mill  and  appurte- 
nances, and  the  timber  of  the  frames,  and  the  shafts,  wa-  ] 
ter  wheels,  and  other  wheels,  and  machinery,  together 
with  the  mill-stones  and  raceways  ;  that  he  did  not  bore 
the  said  timber,  but  it  appeared  to  be  sound  ;  that  the  shafts, 
wheels,  and  machinery  aforesaid,  appeared  to  be  in  good 
order,  and  the  stones  were  equal  in  goodness  to  any  mill- 
stones in  the  state,  in  the  deponent's  opinion,  in  proportion 
to  their  size  ;  and  that  the  raceway  was  firm  and  in  good! 
order,  the  same  being  a  great  and  very  expensive  job. J 
And  the  deponent  saith,  that  previous  to  the  said  appraise-i 
ment,  the  respondents  had  taken  great  pains,  and  had  cm-< 


71 


ployed  carpenters,  and  millrights,  at  a  considerable  ex- 
pense, to  put  the  said  mills  in  good  order ;  and  the  said 
millwrights  were  directed  by  the  respondents,  in  the  hear- 
ing of  the  deponent,  to  neglect  nothing  which  should  be 
necessary  for  putting  the  said  mill  in  good  order ;  and  the 
deponent  knows,  from  his  personal  knowledge,  that  new 
timbers  were  put  into  the  said  mill  where  the  old  ones 
were  found  defective  ;  and  the  deponent  does  not  know 
j  that  there  was  any  omission  on  that  point,  and  he  does  not 
I  believe  there  was  any  such  omission  ;  and  the  deponent 
|  saith,  that  he  thinks  it  was  about  nineteen  years,  at  the 
j  time  of  the  appraisement,  since  the  said  mills  were  first 
i  built,  but  that  he  does  not  recollect  the  particular  time 
i  when  the  addition  aforesaid  was  made  to  the  same  ;  and 
the  deponent  further  saith,  that  in  ascertaining  the  sum  at 
which  he  has  valued  the  aforesaid  mills,  and  the  appurte- 
,  nances,  he  took  into  consideration  the  sum  which  the  re- 
i  spondent,  Abraham  I.  Underbill,  gave  to  his  brother,  Ro- 
bert  Underbill,  for  his  third  part  of  the  said  mills  and  ap- 
i  purtenances,  which  sum  was  six  thousand  dollars  ;  that 
t  the  deponent  then  took  into  account  the  improved  value 
r  of  the  premises,  since  the  said  Abraham  purchased,  as 
aforesaid,  the  interest  of  the  said  Robert,  which  improve- 
:•  ments  principally  consisted  of  the  repairs  made  to  the 
,  mill-stones,  and  of  the  labour  and  expense  in  substituting 
i  a  stone  foundation  for  the  wooden  one  on  which  the  addi- 
tional part  of  the  said  mill,  before  mentioned,  had  been 
0  built,  and  which  was  attended  with  considerable  expense  ; 
A  and  in  addition  to  the  above,  the  deponent  also  took  into 
l|.  account  the  repairs  made  on  the  said  mills  previous  to  the 
on  appraisement,  as  he  has  before  mentioned  ;  and  the  depo- 
9([j  nent  further  saith,  that  he  considers  the  raceway  as  one  of 
,  the  principal  appurtenances  of  the  said  mills  ;  and  that  he 
also  considers  as  appurtenances,  certain  licenses,  common- 
ly called  Evans'  patent  rights,  seven  of  which  the  depo- 


72 

nent  understood  from  Ore  respondents,  had  been  purcha- 
sed by  them,  for  the  said  mills,  and  which  the  deponent 
has  understood  were  estimated,  by  the  said  Evans,  at  th 
time  of  the  appraisement,  at  four  hundred  dollars  for  every 
run  of  stones  ;  but  the  deponent  docs  not  know  what  was 
the  cost  of  the  said  patent  rights  at  the  time  they  were 
originally  purchased  by  the  respondents. 

Testimony      James  Burling  testifies  as  follows,  viz. 

r.f  Jaiue.Uur-      f  .  ° 

""t  To  the  3d  interrogatory — The  deponent  proves  the  ex- 

ecution of  the  conveyance  from  Thomas  Burling,  and  Wil- 
liam Burling,  to  the  respondents,  and  Robert  Underbill, 
marked  Exhibit  A. 

The  testimony  of  Richard  I.  Field  discloses  no  new 
matter.  The  deponent  only  proving  the  execution  of  Ex* 
hibit  B  ;  the  signature  of  the  respondents  to  Exhibit  D ; 
the  signature  of  the  respondent,  Abraham  I.  Underhill,  to 
Exhibit  E ;  and  the  signature  of  Samuel  Mott,  and  Na- 
than Anderson,  to  Exhibit  F. 

Testimony    Phoebe  Field  testifies  as  follows,  viz. 

To  the  5th  interrogatory — The  deponent  proves  the 
execution  of  the  conveyance  marked  Exhibit  C,  by  the1 
respondent,  Abraham  I.  Underhill. 


field. 


Te«timnny     Henry  I.  WyckofF  testifies  as  follows,  viz. 

f>f  Henry  I.  J  J  . 

wyckoc  To  the  1 6th  interrogatory — The  deponent  is  acquainted 
with  Samuel  Mott.  and  has  known  him  six  or  seven  years. 
The  reputation  and  standing  in  society  of  Samuel  Mott, 
as  a  man  of  probity,  judgment,  and  discretion,  is  high  and 
unexceptionable ;  he  is  a  man  of  much  practice  and  ex-l 
perience  in  the  milling  business,  and  is  considered  and  es- 
teemed as  well  qualified,  and  perfectly  competent,  to  form 
a  correct  judgment  of  the  value  of  mills  and  their  appur- 
tenances. 


73 


To  the  1 7th  interrogatory — The  deponent  has  known 
David  Lydig  about  twenty-five  years,  and  has  been  per- 
sonally acquainted  with  him  about  twenty  years.  The 
standing  and  reputation  of  David  Lydig  in  society,  as  a 
man  of  probity,  talents,  and  discretion,  is  high,  and  per- 
fectly unexceptionable  ;  he  has  been  for  many  years  en- 
gaged in  the  milling  business,  and,  from  his  experience  in 
the  same,  the  deponent  considers  him  as  a  person  fully 
competent  to  form  a  correct  opinion  of  the  value  of  mills 
and  their  appurtenances. 

John  Townsend  testifies  as  follows,  viz.  Testimony 
To  the  16th  interrogatory — The  deponent  has  been  ac-  Townsend. 
quainted  with  Samuel  Mott  for  about  three  years.  The 
reputation  and  standing  in  society  of  Samuel  Mott,  as  a 
man  of  honesty,  judgment,  and  discretion,  is  fair  and  good  ; 
he  has  been  many  years  concerned  in  mills,  and  the  manu- 
facturing of  flour,  and  from  his  experience  in  such  con- 
cerns and  business,  he  is  considered  and  esteemed  gene- 
rally a  good  and  competent  person  to  form  a  judgment  of 
the  value  of  mills  and  their  appurtenances,  and,  in  the 
opinion  of  the  deponent,  he  is  fully  competent  to  make 
such  valuation. 

To  the  17th  interrogatory — The  deponent  has  been  ac- 
quainted with  David  Lydig  about  thirty  years.  The 
standing  and  reputation  in  society  of  David  Lydig,  as  a 
man  of  probity,  talents,  and  discretion,  is  fair  and  good  ; 
he  has  for  many  years  been  the  proprietor  of,  and  con- 
cerned in,  mills,  and  the  milling  business,  and  in  the  opi- 
nion of  the  deponent,  by  reason  of  his  experience  in  such 
business,  he  is  fully  competent  to  form  a  correct  opinion 
of  the  value  of  mills,  and  their  appurtenances,  and  the 
deponent  believes  he  is  generally  considered  so. 

Will  iam  Thorn  testifies  as  follows,  viz.  Testimony 
To  the  lGth  interrogatory — The  deponent  has  been  ac-  Tbo«!ll'tm 

10 


74 


quaintcd  with  Samuel  Mott  between  five  and  six  yearg. 
The  reputation  and  standing  in  society  of  Samuel  Mott,  as 
a  man  of  probity  and  sound  judgment,  is  fair  and  unex- 
ceptionable ;  he  is  a  man  of  much  experience,  both  in 
the  milling  business  and  jn  the  building  of  mills,  and  is 
considered  and  esteemed  a  good  and  competent  person  to 
form  a  correct  judgment  of  the  value  of  mills  and  their 
appurtenances. 

To  the  17th  interrogatory — The  deponent  has  known 
David  Lydig  about  nineteen  years.  The  reputation  and 
standing  in  society  of  David  Lydig,  as  a  man  of  probity, 
good  understanding,  and  discretion,  is  good  and  unexcep- 
tionable, and,  from  his  experience  in  the  milling  business, 
and  in  the  building  of  mills,  the  deponent  is  of  opinion 
that  he  is  a  person  as  competent  to  form  a  correct  opinion 
of  the  value  of  mills,  and  their  appurtenances,  as  any 
man  in  the  state  of  New-York. 

Testimony     Edmund  Kirbv  testifies  as  follows,  viz. 

of    Edmund  . 

Kirby.  To  the  16th  interrogatory — I  he  deponent  has  been  ac- 

quainted with  Samuel  Mott  as  long  as  thirty  years.  As 
a  man  of  probity,  good  judgment,  and  discretion,  Samuel 
Mott  has  a  good  standing  in  society,  and,  from  his  long  ex- 
perience in  the  milling  business,  and  in  the  building  of 
mills,  is  considered  and  esteemed  a  good  judge  of  the  va- 
lue of  mills,  and  their  appurtenances. 

To  the  1 7th  interrogatory — The  deponent  has  known 
David  Lydig  about  ten  or  fifteen  years.  The  standing  of 
David  Lydig  in  society,  as  a  man  of  probity,  sound  judg- 
ment, and  discretion,  is  good,  and,  in  the  opinion  of  the 
deponent,  on  account  of  his  great  experience  in  the  build- 
ing of  mills,  and  the  milling  business,  is  as  good  a  judge 
of  the  value  of  mills,  and  their  appurtenances,  as  any 
man  in  the  city  of  New-York. 


75 


Peter  Mesier  testifies  as  follows,  viz.  on£in&u- 
To  the  16th  interrogatory — The  deponent  has  been  ac* sier 
quainted  with  Samuel  Mott  for,  at  least,  ten  years.  The 
reputation  and  standing  in  society  of  Samuel  Mott,  as  a 
man  of  probity,  intelligence,  and  judgment,  is  high  and 
fair,  and,  by  reason  of  his  great  experience  in  the  milling 
business  and  in  the  building  of  mills,  is  generally  consider- 
ed and  esteemed  a  good  and  competent  pecson  to  form  a 
correct  judgment  of  the  value  of  mills  and  their  appurte- 
nances. 

To  the  17th  interrogatory — -The  deponent  has  been  ac- 
quainted with  Dav  id  Lydig  thirty  years.  David  Lydig,  as 
a  man  of  probity,  intelligence,  and  discretion,  has  a  high 
reputation  and  standing  in  society,  and,  by  reason  of  his 
great  experience  in  the  building  of  valuable  and  exten- 
sive mills,  in  different  parts  of  this  state,  the  deponent  is 
of  opinion  that  there  is  no  person  in  the  country  more 
competent  to  form  a  correct  estimate  of  the  value  of  mills, 
and  their  appurtenances,  than  David  Lydig. 

Jacob  Wood  testifies  as  follows,  viz.  Testimo- 
ny of  Jacob 

I  To  the  sixteenth  interrogatory — The  deponent  has  been  Wood- 
acquainted  with  Samuel  Mott  for  about  twenty  years.  The 
reputation  and  standing  in  society  of  Samuel  Mott,  as  a 
man  of  probity  and  good  judgment,  is,  the  deponent  be- 
lieves, unexceptionable,  and  from  his  having  been  con- 
cerned for  many  years  past  in  the  building  of  mills,  and 
in  the  milling  business,  the  deponent  thinks  he  must  have 
acquired  much  experience  therein,  and  he  is,  in  the  opi- 
nion of  the  deponent,  on  that  account,  a  good  and  com- 
petent person  to  form  a  judgment  of  the  value  of  mills  and 
their  appurtenances.  The  deponent  presumes  that  this  is 
the  opinion,  generally,  of  those  who  are  acquainted  with 
Samuel  Mott,  the  deponent  never  having  heard  his  com- 
petency as  aforesaid  questioned,  except  in  the  present 
controversy. 


76 


To  the  seventeenth  interrogatory — The  deponent  has 
been  acquainted  with  David  Lydig  twelve  years  and  up- 
wards, but  not  so  intimately  as  with  Samuel  Mott.  The 
deponent  believes  the  standing  and  reputation  in  society 
of  David  Lydig  is  respectable  ;  he  has  been  for  many 
years  concerned  in  the  building  of  mills,  and  in  the  milling 
business,  and  from  the  experience  which  the  deponent 
thinks  he  mugt  thereby  have  acquired,  the  deponent  is  of 
opinion  that  he  is  a  competent  person  to  form  a  correct 
opinion  of  the  value  of  mills  and  their  appurtenances. 

TMtiioony     Richard  Mott  testifies  as  follows,  viz. 

,ou  To  the  sixteenth  interrogatory — Samuel  Mott  is  the  de- 

ponent's brother,  and  has  had  much  experience  in  the 
milling  business,  and  in  the  build. rig  of  mills,  having  been 
engaged  in  the  former  from  his  youth ;  on  account  of 
which,  and  from  his  good  reputation  as  a  man  of  probity, 
good  judgment,  and  discretion,  the  deponent  considers  him 
a  competent  person  to  form  a  correct  estimate  of  the  va- 
lue of  mills  and  their  appurtenances. 

To  the  eighteenth  interrogatory — The  deponent  knows 
the  mills,  appurtenances,  and  o.her  buildings  mentioned 
in  the  interrogatory,  and  has  been  intimately  acquainted 
with  them  ever  since  they  were  built ;  he  has  often  visited 
the  said  mills  and  appurtenances  while  they  were  i'.  the 
possession  of  the  respondents,  and  used  frequently  to  view 
and  examine  the  said  mills  merely  from  curiosity,  arising 
from  the  circumstance  of  being  himself  a  miJler,  and  en- 
gaged in  the  same  business  as  the  respondents  ;  the  depo- 
nent has  been  told  that  the  appraisers  appraised  the  mills 
and  appui  tenances  at  ]  8,500  dollars,  and,  in  his  opinion, 
founded  on  his  knowledge  of  the  premises  in  question,  the 
said  appraisement  does  not  exceed  the  real  value  of  the 
said  mills  and  premises. 

To  the  last  interrogatory — The  deponent  very  well  re- 
members, that  when  the  respondents  were  about  erecting 


77 


the  mills  in  question,  the  project  was  considered  by  seve- 
ral persons  of  their  acquaintance,  as  a  pretty  hazardous 
undertaking,  on  account  of  the  wildness  of  the  situation, 
and  the  difficulty  of  making  a  raceway,  and  getting  a  per- 
manent foundation  for  the  building,  and  the  making  of 
which  raceway  was,  in  the  deponent's  opinion,  a  very  la- 
borious and  expensive  job. 

CROSS-EXAMINED. 

To  the  2nd  cross  interrogatory — The  respondents  are 
cousins  of  the  deponent's  wife. 

To  the  6th  cross-interrogatory — The  deponent,  as  he 
has  before  mentioned  in  his  answer  to  the  direct  interro- 
gatories, used,  occasionally,  to  view  and  examine  the  mills 
in  question,  and  he  has  often  been  in  the  dwelling-house 
on  the  premises,  and  has  lodged  therein  ;  he  does  not 
know  from  actual  measurement  the  dimensions  of  the  said 
mill,  but  he  very  well  remembers  hearing  the  miller  say 
that  it  was  sixty  feet  by  fifty,  and,  from  its  appearance,  the 
deponent  has  no  doubt  that  such  was  about  its  true  dimen- 
sions ;  but  he  does  not  recollect  the  exact  size  of  the  dwell- 
ing house  in  question.  The  deponent,  previous  to  the  time 
of  the  appraisement  in  question,  as  he  has  already  men- 
tioned, used  frequently  to  go  into  and  view  and  examine 
the  mills  and  machinery  in  question,  and  he  always  found 
and  considered  the  same  in  good  order,  and  that  this  was 
the  case  as  late  as  the  spring  of  the  year  1813,  shortly  be- 
fore the  appraisement,  but  that  the  deponent  never  viewed 
nor  examined  the  said  mills,  &c.  in  reference  to  the  said 
appraisement,  nor  did  he  ever  particularly  examine  the 
timber  of  the  frame  of  said  mill,  nor  the  mill-stones  :  and 
the  deponent  saith,  that,  to  the  best  of  his  recollection, 
the  mills  in  question  were  built  from  within  one  to  two 
years  from  the  commencement  of  the  lease.  And  lastly, 
the  deponent  saith,  that  in  making  up  his  opinion  of  the 
value  of  the  mill  in  question,  he  has  taken  into  account  the 


78 


whole  machinery  appertaining  to  the  same,  including  cer- 
tain parts  of  said  machinery,  commonly  called  patent  ele- 
vators, the  right  to  use  which  is  purchased  by  the  first  pro- 
prietor ;  and  the  deponent  supposes  the  same  is  continued 
to  those  who  succeed  to  the  possession  of  the  mills ; 
and  the  deponent  has  understood  that,  in  purchasing  said 
rights,  a  certain  sum  is  paid  for  every  run  of  stones  con- 
tained in  the  mill,  that  being  the  standard  by  which  the  va- 
lue of  the  use  of  the  said  right  is  estimated. 
nnThe'p™"o^    The  testimony,  on  the  part  of  the  appellants  in  the  ori- 
M.  *PP'1'  ginal  suit,  consists  of  exhibits  A,  O  No.  1,  O  No.  2,  and  O 
No.  3  ;  and  the  depositions  of  Nathan  Anderson,  Theodo- 
dorusC.  Van  Wyck,  Thomas  Burling,  William  Burling,  Ro- 
,  bert  M'Queen,  Justus  Thorn,  Scudder  Waring,  Walter 

Fowler,  William  Fowler,  Adonijah  Cock,  John  F.  Holl- 
man,  Joseph  Tompkins,  Daniel  W.  Birdsall,  James  Diven, 
Jacob  Doughty,  Stephen  N.  Bayard,  George  Tompkins, 
Robert  M'Cord,  John  Bise,  Solomon  Teller,  John  Peter- 
son, and  Garret  Williams. 
Cibibit  a.     Exhibit  A  is  a  copy  of  exhibit  O,  No.  1,  the  original. 

E*hibii  o,  Exhibit.  No.  1,  mentioned  and  referred  to  in  the  depo- 
JTo  i.  .... 

sition  of  William  Burling,  is  an  account  current  between 

Thomas  and  William  Burling,  and  Joshua  Underhill  & 
Co.  which  account,  under  date  of  July,  1793,  contains  the 
following  item,  to  the  debit  of  Thomas  and  William  Bur- 
ling, viz.  "  One  half  the  amount  of  the  cost  of  the  milk  at 
Croton— £1600  8  10$." 

N.  B.  The  date  of  the  last  item  in  this  account,  is  the 
18th  of  April,  1796. 
Exhibit  o.     Exhibit  O,  No.  2,  also  mentioned  and  referred  to  in  the 

So.  2 

deposition  of  William  Burling,  is  another  account  current, 
between  Thomas  and  William  Burling,  and  Jo>hua  Under- 
hill, &  Co.  which  account,  under  date  of  the  4th  of  April, 
1  798,  contains  the  following  item  to  the  debit  of  Thomas 
and  William  Burling,  viz. 

t;  One  half  amount  of  the  prime  cost  of  the  mills  at  Cro- 


79 


ton.  expended  since  the  1st  of  3d  month,  (March)  1794 — 
£1376  7." 

Exhibit  O,  No.  3,  also  mentioned  and  referred  to  in  the  N^ 
deposition  of  William  Burling,  is  a  paper  containing  ac- 
counts, and,  amongst  others,  the  following,  viz. 

"  RECAPITULATION. 

"  Mills  and  improvements  at  Croton,  £5953  1 1  9 
"  Two  sloops,  -  -  -  -  1054  9  6 
"  Stores  on  Crane  wharf,    -       -       -     1743    9  7 


£8751  10  10" 


Nathan  Anderson  testifies  as  follows,  viz. 

To  the  first  interrogatory — The  deponent  is  a  farmer  ofTNeft'h™™' 
and  mechanic,  having  been  engaged  in  the  milling  busi-  ADders0<> 
ness,  and  in  cooperage. 

To  the  third  interrogatory — The  deponent  saith,  that 
he  was  chosen  and  appointed,  in  the  manner  mentioned  in 
said  interrogatory,  to  appraise  and  value  the  mills  and  pre- 
mises, particularly  mentioned  and  referred  to  in  said  in- 
terrogatory, at  the  expiration  of  the  term  for  which  the 
same  were  leased.  The  paper  writing  marked  with  the 
letters  N  A,  (deposited  with  the  examiner,)  will  show  the 
manner  in  which  he  was  appointed  such  appraiser ;  the 
said  paper  writing  being  signed  by  Pierre  Van  Cortlandt, 
and  Philip  Van  Cortlandt,  and  bearing  date  the  28th  of 
April,  1813.  (This  is  the  paper  set  forth  in  ha?c  verba,  in 
the  answer  to  the  original  bill.) 

To  the  fourth  interrogatory — The  deponent  saith,  that, 
previous  to  the  appointment  of  David  Lydig,  as  a  third  ap- 
praiser, the  deponent  and  Samuel  Mott,  the  other  ap- 
praiser, took  a  general  view  of  the  mills,  buildings,  and  ap- 
purtenances in  question  :  that  is  to  say,  they  viewed  the 
grist  mills,  occupied  by  the  respondents,  and  went  into  and 
under  the  same,  but  did  not  give  them  a  minute  examina- 


80 


tion ;  that  they  also  looked  at  the  dam  and  raceway,  as 
well  as  the  other  buildings  referred  to,  but,  in  the  depo- 
nent's opinion,  he  and  the  said  Samuel  Mott  did  not,  on 
that  occasion,  examine  the  said  mills  and  appurtenances, 
in  a  manner  sufficiently  particular  to  enable  them  to  form 
a  just  and  correct  estimate  of  their  value  5  that,  in  making 
said  examination,  he  does  not  recollect  that  they  went  into 
the  cog-pit,  which  was  nailed  up,  nor  does  he  recollect  that 
the  mill-stones  were  turned  up,  in  order  to  be  inspected, 
though  the  deponent  is  not  certain,  but  that  they  found  one 
or  two  of  the  stones  turned  up.    The  reason  why  the  ex- 
amination aforesaid  was  not  more  particular  and  minute, 
was  a  suggestion,  on  the  part  of  the  said  Samuel  Mott,  that 
he  and  the  deponent  were  taking  upon  themselves  too  great 
a  responsibility,  in  attempting  an  appraisement  of  said 
mills  and  premises,  and  that,  therefore,  it  would  be  better 
to  call  in  a  third  person,  before  they  attempted  to  come  to 
any  determination  relative  to  the  appraisement. 

To  the  fifth  interrogatory — The  deponent  saith,  that  he 
and  the  said  Samuel  Mott,  though  they  conversed  together, 
touching  the  value  of  the  mills  and  premises  in  question, 
previous  to  the  appointment  of  David  Lydig.  yet  that  they 
did  not  undertake  to  affix  any  particular  value  thereon,  or 
any  part  thereof,  for  the  reason  he  has  before  mentioned ; 
and  he  does  not  recollect  of  any  gum  or  sums  being  pro- 
posed or  suggested  to  him  by  the  said  Samuel  Mott,  touch- 
ing the  value  as  aforesaid,  so  that  he  does  not  remember  of 
there  being  any  disagreement  between  them,  as  to  sums 
and  values,  because  none  were  mentioned ;  and  the  depo- 
nent does  not  recollect  that  he  was  requested  by  Samuel 
Mott  to  inform  the  appellant,  Philip  Van  Cortlandt,  and 
the  said  Pierre  Van  Cortlandt,  deceased,  that  he  and  the 
said  Samuel  had  disagreed,  or  could  not  agree,  as  inquired 
of  in  said  interrogatory,  but  the  deponent  has  some  im- 
pression on  his  mind,  that  they  went  together,  and  told 
either  the  respondents  or  the  appellant,  Philip  Van  Cort- 


81 


landt,  and  the  said  Pierre  Van  Cortlandt,  deceased,  or 
both,  he  does  not  recollect  which,  that  they  had  not 
agreed  ;  and  that,  therefore,  they  wished  to  have  a  third 
man  to  consult  and  decide  with  them,  on  the  subject  of 
said  appraisement,  but  he  does  not  remember  that  they  as- 
signed any  particular  reason  therefor. 

To  the  sixth  interrogatory — The  deponent  saith,  that 
the  aforesaid  David  Lydig  was  chosen  and  appointed  by 
him  and  the  said  Samuel  Mott,  to  aid  and  assist  in  the  va- 
luation of  the  mills  and  premises  in  question,  and  the  de- 
ponent did  not  consider  him  chosen,  or  appointed  as  an 
umpire,  in  relation  to  the  matters  in  question. 

To  the  7th  interrogatory — The  deponent  saith,  that,  at 
the  time  appointed  for  the  view  and  examination  of  the 
premises  in  question,  after  the  appointment  of  Mr.  Lydig, 
the  deponent  did  not  arrive  at  the  place  till  after  the  hour 
appointed,  and  he  does  not  know  what  examination  they  had 
been  making,  previous  thereto ;  that  the  deponent  then 
joined  them,  and  they  proceeded  to  go  round  and  walk  over 
the  premises,  and  to  take  a  view  of  the  different  parts  there- 
of ;  that  they  went  into  the  mills  occupied  by  the  Under- 
bills, and  the  same  were  put  in  motion  while  they  were  in 
the  same ;  that  they  then  went  and  looked  at  the  mill  oc- 
cupied by  John  F.  Hollman,  under  the  Van  Cortlandts,  and 
also  proceeded  to  view  the  other  buildings,  and  the  dam 
and  raceway;  that  on  the  occasion  aforesaid,  they  examined 
the  foundation  of  the  first-mentioned  mills,  but  not  of  the 
others,  nor  of  the  other  buildings ;  that  they  also  took  a 
general  view  of  the  timber,  composing  the  frames  of  said 
mills,  but  they  did  not  bore  the  same,  though  he  remembera 
a  knife  was  run  into  some  part  of  the  sleepers,  which  were 
found  to  be  rotten  ;  that,  when  under  the  mill,  he  observed 
that  one  of  the  sills  was  rotted,  and  part  of  a  new  one  had 
been  put  in;  that  he  does  not  recollect  of  going  into  the 
cog-pit,  though  he  thinks  they  looked  into  it,  through  a 
small  door,  but  the  darkness  of  the  place  prevented  their 

11 


82 


having  a  full  view  thereof ;  that  they  also  looked  at  the  bolts. 
The  deponent  does  not  know  of  any  measurement  being 
made  of  the  dimensions  of  either  of  said  mills,  or  other 
buildings,  nor  was  any  account  taken  of  the  timber,  com- 
posing the  frames  of  said  mills  and  buildings,  though  they 
took  a  view,  as  he  before  mentioned,  of  the  machinery  of 
the  mills,  but  not,  as  he  thought,  in  so  particular  a  manner 
as  was  necessary  to  ascertain  their  real  value.  There  wa« 
no  particular  calculation  made  of  the  value  of  the  different 
and  particular  parts  of  the  said  mills  and  machinery,  but 
only  a  general  estimate  of  the  whole  together ;  and  he  is 
of  opinion,  that  the  view  and  examination,  made  as  afore- 
said, was  not  done  in  a  manner  sufficiently  particular  to 
enable  them,  the  said  appraisers,  to  form  a  just  and  correct 
estimate  of  the  value  of  the  property  which  they  were  to 
appraise. 

To  the  eighth  interrogatory — The  deponent  saith,  that, 
in  making  the  appraisement  in  question,  they,  the  said  ap- 
praisers, did  not  value  each  of  said  mills  and  appurtenances, 
and  other  buildings  of  the  respondents,  separately,  that  is 
to  say,  they  did  not  appraise  the  different  parts  thereof  se- 
parately ;  the  said  Samuel  Mott  and  David  Lydig,  however, 
said,  that  they  believed  and  were  of  opinion  that  the  mill, 
raceway,  and  dam,  must  have  cost  twenty  thousand  dollars  ; 
upon  which  the  deponent  remarked,  that  he  did  not  think 
that  they  could  have  cost  as  much  as  fourteen  thousand 
dollars  ;  whereupon  it  was  proposed  to  call  in  the  respon- 
dent, Abraham  I.  Underhill,  in  order  to  ask  him  what  money 
had  been  laid  out  on  the  mill,  dam,  and  raceway ;  and  the 
said  Underhill  then  stated,  that  they,  the  respondents,  had 
laid  out  twenty  thousand  dollars  on  the  same.  The  depo- 
nent finding  that  the  said  Mott  and  Lydig  were  for  fixing 
the  value  thereof  at  twenty  thousand  dollars,  and  that  they, 
being  the  majority,  would  of  course  charge  the  Van  Cort- 
landts  to  that  amount ;  and  they  having  proposed  to  the 
deponent  that  they  would  put  the  value  at  eighteen  thou- 


83 


sand  dollars,  instead  of  twenty  thousand  dollars,  if  he,  the 
deponent,  would  concur  with  them,  he  accordingly  agreed 
to  said  proposal,  and  said  he  would  on  that  condition  sign 
the  appraisement ;  but  told  them,  at  the  same  time,  that 
he  thought  the  said  sum  of  eighteen  thousand  dollars  was 
far  beyond  the  value  of  the  said  premises.  The  dwelling- 
house  was  valued  at  five  hundred  dollars  •,  and  that  no  other 
separate  valuation  was  made  or  took  place  ;  and  that  as  to 
fhe  machinery,  called  patent  rights,  as  inquired  about  in 
said  interrogatory,  he  does  not  remember  that  there  was 
any  separate  valuation  made  of  them,  nor  does  he  recollect 
that  any  sum  was  mentioned  respecting  them  ;  but  that 
the  same  were  considered  as  belonging  to,  and  as  appur- 
tenances of,  said  mills ;  nor  docs  he  remember  any  thing 
about  the  respondents  attempting  to  offer  any  evidence 
relative  to  said  patent  rights. 

To  the  ninth  interrogatory — The  deponent  saith,  that, 
as  he  has  before  mentioned,  the  respondent,  Abraham  I. 
Underbill,  was  called  into  the  room,  where  they,  the  said 
appraisers,  were  deliberating,  for  the  purpose  of  being 
asked,  as  aforesaid,  how  much  money  they,  the  respondents, 
had  laid  out  upon  said  mills  and  premises,  and  that  this 
was  done  at  the  request  of  the  deponent ;  he,  the  said  Un- 
derbill, having  been  in  a  little  while  before,  together  with 
Van  Wyck  and  Van  Cortlandt,  in  order  to  state  something 
about  the  appraisement  of  General  Van  Cortlandt's  mill, 
and  after  they,  the  said  persons,  had  retired,  the  deponent 
then  proposed,  that  the  said  Underbill  should  be  called  in 
for  the  purpose  of  asking  the  question  before  mentioned, 
namely,  how  much  money  they,  the  respondents,  had  ex- 
pended on  the  premises,  and  that  this  was  the  only  time 
that  he  was  alone  before  them,  the  said  appraisers,  while 
they  were  conferring  together,  and  it  was  then  that  the  said 
Underbill  was  asked  the  question  aforesaid,  and  answered 
that  they,  the  respondents,  had  laid  out  twenty  thousand 
dollars.    Upon  which  the  deponent  asked  him  for  the  ac- 


84 


counts,  to  which  he  answered,  that  he  had  none  ;  and  n» 
other  question  being  asked  him,  he  went  out  of  the -room. 

To  the  tenth  interrogatory — The  deponent  saith,  that 
Theodorus  C.  Van  Wyck  appeared  before  them,  the  said 
appraisers,  only  once,  to  the  best  of  his  recollection,  before 
they  finally  retired  to  deliberate,  and  offered  some  evi- 
dence, which  Mr.  Lydig  refused  to  hear,  telling  him  that 
he  did  not  think  that  they,  the  appraisers,  were  boun4-to 
receive  any,  and  that  after  they,  the  said  appraisers,  had 
retired  to  deliberate  and  confer,  the  said  Van  Wyck  did 
not  come  into  the  room,  nor  appear  at  all  before  them, 
nor  any  other  person,  than  the  aforesaid  Abraham  I.  Un- 
derbill. 

To  the  eighteenth  interrogator)* — The  deponent  saith, 
that  at  the  time  of  his  acting  as  an  appraiser,  as  abovemen- 
tioned,  he  viewed  and  examined  the  mills  mentioned  and 
inquired  about  in  said  interrogatory ;  and  that,  from  this 
circumstance,  and,  also,  from  the  circumstance  of  his  hav- 
ing lived  for  twenty-two  years  near  the  premises,  during 
which  time  he  has  been  in  the  constant  habit  of  seeing  the 
said  mills,  he  is  particularly  well  acquainted  with  both 
of  them,  and  is  enabled  to  form  a  pretty  correct  estimate 
of  their  comparative  value,  and  that,  in  his  opinion,  the 
said  mill,  first  mentioned  and  described  in  said  interroga- 
tory, (Van  Coitlandt  and  Hollman's)  is  more  valuable 
than  the  said  other  mill,  formerly  in  the  occupation  of  the 
respondents  ;  that  he  has  never  measured  either  of  said 
mills,  but  that  the  one  belonging  to  General  Van  Cort- 
landt  is  a  good  deal  higher,  though,  perhaps,  not  wider 
than  the  other,  and  is  in  much  better  order,  and  is  sounder 
in  every  part,  in  the  deponent's  opinion,  being  a  newer 
mill  by  several  years,  and  constructed  on  a  better  plan, 
particularly  as  to  its  machinery,  and  capable  of  doing  bu- 
siness to  better  advantage  ;  and  the  deponent  saith,  that  if 
the  choice  were  proposed  to  him,  he  would  rather  have 
fhe  said  mill  of  Gene ral  Van  Cortlandt.  than  two  such 


85 


mills  as  the  respondent's,  without,  however,  taking  into  ac- 
count the  dam  and  raceway  belonging  to  the  latter. 

To  the  twenty-third  interrogatory — The  deponent  saith, 
that  he  is  well  acquainted  with  the  premises,  mentioned 
and  inquired  of  in  said  interrogatory  ;  and  "that,  previous 
to  the  time  when  the  respondents  took  their  lease,  and 
erected  their  mill,  as  before  mentioned,  in  said  place, 
there  were  two  grist  mills,  namely,  one  being  a  small  one, 
which  used  to  grind  for  the  country,  and  which  the  depo- 
nent very  well  remembers,  and  the  other,  (which  he  also 
saw,  but  while  it  was  in  ruins,)  he  was  informed,  used  to 
be  employed  by  Lieutenant-Governor  Van  Cortlandt,  in 
manufacturing  flour.  The  deponent  also  remembers,  that 
there  was  a  raceway,  at  the  place  aforesaid,  for  the  said 
mills  ;  that  the  small  mill  aforesaid,  for  country  work,  was 
in  operation  at  the  time  the  respondents  began  to  erect 
their  aforesaid  mill,  or  mills,  but  the  other  was,  about  that 
time,  taken  down,  and  the  small  one  was  also  shortly  after- 
wards taken  down  ;  previous  to  which,  however,  the  said 
small  mill  was  used  by  the  respondents  for  grinding,  but  for 
what  length  of  time  he  does  not  remember ;  he  thinks, 
however,  not  long  after  they  got  their  new  mills  in  opera- 
tion. 

To  the  last  interrogatory — The  deponent  saith,  that,  at 
the  time  they,  the  said  appraisers,  were  deliberating  on 
the  subject  of  the  appraisement,  the  aforesaid  David  Ly- 
dig  observed  to  the  deponent,  and  Mr.  Mott,  that  the  re- 
spondents were  enterprising  men  ;  that  they  had  taken  the 
place  in  a  state  of  nature,  had  laid  out  a  great  deal  of  mo- 
ney, and  had  made  it  a  valuable  property  ;  that,  therefore, 
the  Van  Cortlandts  ought  either  to  renew  their  lease,  or 
pay  them  what  they  had  laid  out ;  and  it  appeared  to  the 
deponent,  that  the  said  David  Lydig,  in  making  said  valu- 
ation, as  above  mentioned,  was,  in  some  measure,  guided 
by  this  idea  and  view  of  the  case,  and  which  idea  the  de- 
ponent considers  as  erroneous  and  improper. 

(This  witness  was  not  cross  examined.) 


86 


Theodorus  C.  Van  Wyck  testifies  as  follows,  viz. 
Iwcyof  To  the  fourth  interrogatory— The  deponent  saith,  that 
vM  wyct  when  Samuel  Mott  and  Nathan  Anderson,  on  the  first  and 
third  days  of  May,  1813,  viewed  and  examined  the  mills 
and  appurtenances,  mentioned  and  referred  to  in  6aid  in- 
terrogatory, he,  at  the  request  of  the  late  Pierre  Van  Cort- 
landt, deceased,  to  attend  to  the  business  of  the  appraisal 
thereof,  accompanied  them,  and  that  this  was  previous  to 
the  appointment  of  David  Lydig  as  a  third  appraiser  ;  that 
the  said  Mott  and  Anderson,  on  the  occasion  aforesaid, 
went  into  the  grist  mill  in  question,  built,  as  he  understood 
and  believes,  by  the  respondents  and  their  co-lessees,  but 
did  not  make  a  thorough  examination  thereof;  that,  on 
the  3d  of  May  aforesaid,  they  went  into,  and  viewed,  and 
examined,  in  a  slight  and  cursory  manner,  the  grist  mill 
erected  by  Philip  Van  Cortlandt  and  Jesse  Field,  and 
standing,  in  part,  upon  the  said  leased  premises,  and  then 
owned  by  Philip  Van  Cortlandt,  and  John  F.  Hollman. 
The  deponent  saith,  that  it  did  not  appear  to  him  that 
they  took  much  pains  to  ascertain  the  particular  condition 
of  the  mills  and  premises,  examined  by  them  as  aforesaid, 
and  the  deponent  does  not  think  that  they  examined  the 
said  mills  and  appurtenances,  nor  either  of  them,  in  a 
manner  sufficiently  particular  to  enable  them  to  form  a 
just  and  correct  estimate  of  their  value,  nor  of  the  value  of 
either  of  them,  and  the  deponent  was  not  satisfied  with 
their  manner  of  viewing  and  examining  the  same. 

To  the  seventh  interrogatory — The  deponent  saith,  that 
on  the  8th  of  July,  in  the  year  aforesaid,  he,  as  agent  to 
Pierre  Van  Cortlandt,  deceased,  accompanied  the  afore- 
said Mott  and  Anderson,  together  with  David  Lydig,  the 
other  appraiser,  in  viewing  and  examining  the  mills  and 
premises  in  question,  and  that,  in  his  opinion,  the  said  ap- 
praisers did  not  examine  the  mills  and  appurtenances  in  a 
manner  suffic*ently  particular  to  enable  them  to  form  a 
just  and  correct  estimate  of  their  value,  nor  of  the  value  of 


87 


either  of  them ;  and  he,  the  deponent,  was  not  satisfied 
with  their  manner  of  viewing  and  examining  the  same,  as 
it  did  not  appear  to  him*  that  they  took  sufficient  pains  to 
astertain  the  real  state  and  condition  in  which  the  said 
mills  and  appurtenances  were,  nor  either  of  them  ;  nor 
did  they  examine  either  of  the  other  buildings,  as  the  de- 
ponent saw,  except  the  dwelling  house  then  occupied  by 
Abraham  I.  Underhill. 

To  the  tenth  interrogatory — The  deponent  saith,  that, 
on  the  8th  of  July  aforesaid,  after  the  appraisers  had  their 
view  and  examination,  in  manner  aforesaid,  and  having 
eaten  dinner,  had  retired  to  a  private  room,  up  stairs,  in 
the  house  aforesaid,  occupied  by  Underhill,  they  sent  word 
to  the  respondents,  the  appellant  Philip  Van  Cortlandt,  and 
the  deponent,  telling  them,  that,  if  they  had  any  thing  to 
communicate,  they  were  ready  to  hear  them ;  whereupon 
the  respondents,  the  appellant  Philip  Van  Cortlandt,  and 
the  deponent,  as  the  agent  of  Pierre  Van  Cortlandt,  now 
deceased,  went  up  into  the  said  room  ;  that  the  deponent, 
having  heard  David  Lydig,  while  viewing  the  premises,  re- 
mark, that  the  raceway  was  an  immense  thing,  and  the 
aforesaid  Samuel  Mott  having,  at  the  same  time,  said  to 
the  deponent,  "  I  suppose  you  would  not  be  without  the 
raceway  for  ten  thousand  dollars  ?"  the  deponent  availed 
himself  of  the  opportunity  aforesaid,  then  and  there  into 
the  said  room,  as  the  agent  of  Pierre  Van  Cortlandt,  de- 
ceased, and  in  the  presence  of  the  respondents,  to  men- 
tion to  the  said  appraisers,  that  he  could  bring  witnesses  to 
prove,  that  the  said  raceway  in  question  would  not  cost,  at 
the  then  present  rate  of  wages,  more  than  one  thousand 
dollars ;  to  which  the  said  David  Lydig  replied,  that  he 
could  not  wait  to  receive  such  evidence  ;  that  the  depo- 
nent then  offered  to  go  into  the  evidence  thereof  immedi- 
ately ;  to  which  the  said  David  Lydig  made  no  answer, 
and  appeared  to  be  displeased  ;  nor  did  Mott  or  Anderson 
make  any  reply  thereto  ;  and  the  deponent  considered  it 


88 

as  amounting  to  a  refusal  to  receive  9aid  evidence  ;  that 
the  deponent  was  prepared  to  make  a  number  of  observa- 
tions to  the  appraisers  on  the  subject  that  they  were  then 
about  to  deliberate  upon,  but  that  he  was  so  surprised  at 
the  conduct  of  Mr.  Lydig,  in  manner  above  mentioned, 
that  he  did  not  make  all  the  remarks  he  had  intended,  and 
he  retired  with  the  rest  of  the  parties  aforesaid,  a  6hort 
time  afterwards ;  that  shortly  afterwards,  the  deponent  re- 
collecting, that  the  aforesaid  Pierre  Van  Cortlandt,  decea- 
sed, had  instructed  him  to  declare  to  the  appraisers,  that  he 
would  have  nothing  to  do  with  the  patent  rights,  or  li- 
censes, the  deponent  thought  it  his  duty,  acting  as  his 
agent,  to  communicate  the  same  to  the  said  appraisers  : 
whereupon  he  went  to  the  door  of  said  room,  and  asked 
permission  to  come  in,  telling  them,  that  he  had  some- 
thing to  communicate,  and  thereupon,  before  such  com- 
munication was  made  to  them  by  the  deponent,  they  sent 
for,  or  Samuel  Mott  called,  Joshua  Underbill,  one  of  the 
respondents,  to  come  and  be  present  at  the  time  the  depo- 
nent should  make  the  same;  that,  when  he  came,  the  de- 
ponent mentioned  to  them  the  determination  aforesaid,  of 
the  said  Pierre  Van  Cortlandt,  relative  to  the  patent  rights  ; 
to  which  the  said  Underhill  replied,  that  he  had  bought 
the  patent  rights  for  six  run  of  stones,  with  the  privilege  of 
using  seven  ;  that,  after  some  little  conversation,  he  and 
the  said  Underhill  left  the  room ;  after  which  the  depo- 
nent did  not  go,  nor  attempt  to  go  into  said  room,  till  af- 
ter the  said  appraisers  had  made  up  or  signed  their  re- 
port. 

To  the  eleventh  interrogatory — The  deponent  saith,  that 
he  viewed  and  examined  the  mills  and  machinery  in  ques- 
tion, together  with  the  dam  and  raceway,  before  the  1st  of 
May,  1813,  and  that  he  has  viewed  the  same  since  that 
period  ;  that,  between  the  first  of  May,  and  the  latter  part 
of  November,  1813,  he  took  various  views  of  the  mills  and 
premises  before  mentioned,  and  that  he  did  the  same  for 


89 


the  purpose  of  enabling  himself  to  form  an  opinion  of  the 
value  thereof,  respectively  ;  and  he  took  pains  to  ascertain 
what  the  said  mill,  built  by  the  respondents,  and  the  dam 
and  raceway,  were  worth,  and  the  deponent  considered  the 
same,  together  with  the  saw-mill,  to  be  worth,  on  the  8th 
of  July,  181 3,  about  six  thousand  five  hundred  dollars  ;  and 
he  is  still  of  the  same  opinion,  as  to  their  value  at  that 
time. 

To  the  fourteenth  interrogatory — The  deponent  saith, 
that  he  has  known  the  mills  and  premises  in  question  for 
many  years,  and  that  he  was  in  the  habit  of  seeing  them, 
at  various  times,  for  a  number  of  years,  and  that  as  he  has 
already  mentioned,  he  examined  said  mills,  and  the  machi- 
nery appertaining  thereto,  and  the  dam  and  raceway  in 
question,  at  various  times,  between  the  first  of  May  and 
the  latter  part  of  November,  and  that  he  also  paid  parti- 
cular attention  to  the  condition  and  state  of  repair  there- 
of, at  the  two  several  times  when  he  accompanied  the  ap- 
praisers, as  he  has  before  mentioned  ;  and  that,  on  the  22d 
of  November,  in  said  year,  he  also  took  a  particular  no- 
tice thereof,  and  that  the  only  material  difference,  in  the 
condition  and  state  of  repair  thereof,  between  the  8th  day 
of  July  and  the  said  22d  day  of  November,  consisted  in  the 
natural  wear  and  tear  thereof,  and  in  the  destruction  of  one 
of  the  main  cog-wheels,  which  went  to  pieces,  as  he  under- 
stood and  believes,  while  in  ordinary  use  ;  and  the  depo- 
nent does  not  know  whether  or  not  the  mills  or  machinery, 
and  the  dam  and  raceway,  have  decreased  in  value,  since 
the  first  of  May,  1813,  to  this  present  time,  as  inquired  of 
in  said  interrogatory. 

To  the  last  interrogatory — The  deponent  saith,  that, 
sometime  after  the  8th  of  July,  1813,  and  subsequent  to  the 
appraisement,  the  said  David  Lydig,  upon  the  deponent's 
showing  him  a  copy  of  the  report  of  the  appraisers,  and 
asking  him  if  he  had  appraised  the  patent  rights,  for  seven 
run  of  stones  for  the  mill  of  the  respondents,  he  answered 

12 


90 


in  the  affirmative  ;  and  the  deponent  further  saith,  that  the 
only  inventory,  to  his  knowledge  or  belief,  taken  by  the 
appraisers,  of  the  property  in  question,  previous  to  their 
making  their  report,  consisted  merely  of  a  memorandum 
respecting  the  bolts,  and  he  did  not  see  them  take  a  me- 
morandum or  inventory  of  any  thing  else  ;  and  the  deponent 
further  saith,  that  when  he  appeared  before  the  said  ap- 
praisers, in  the  manner  he  has  before  mentioned,  and,  as 
he  believes,  previous  to  his  offering  to  go  into  evidence,  as 
before  mentioned,  he  stated  in  the  presence  of  the  respon- 
dents, that  it  was  the  request  of  the  said  Pierre  Van  Cort- 
landt,  deceased,  that  each  thing  should  be  appraised  sepa- 
rately, to  which  Mr.  Lydig  replied,  that  he  did  not  know 
that  they  were  bound  to  appraise  them  in  that  manner ;  and 
the  deponent  saith,  that  he,  neither  as  the  agent  of  the  said 
Pierre  Van  Cortlandt,  deceased,  nor  otherwise,  ever  con- 
sented that  the  said  David  Lydig  should  be  appointed  one 
of  the  appraisers,  nor  as  an  umpire ;  and  the  deponent  fur- 
ther saith,  that  the  late  Pierre  Van  Cortlandt,  deceased, 
was,  on  the  first  of  May,  1813,  upwards  of  ninety  years  of 
age,  as  the  deponent  understood  and  believes,  and  that  he 
was  not  able  to  attend  the  appraisers  in  viewing  and  exami- 
ning the  mills,  &c.  neither  on  the  first,  nor  third  of  May, 
1813,  nor  eighth  of  July,  in  the  same  year,  nor  was  the 
said  Pierre  Van  Cortlandt  present  with  the  said  ap- 
praisers, in  any  of  their  proceedings  relative  thereto ;  and 
the  deponent  further  saith,  that  to  the  best  of  his  knowledge, 
information,  and  belief,  neither  the  said  David  Lydig,  nor 
the  said  Samuel  Mott,  has  been  into  either  of  the  aforesaid 
mills  since  the  eighth  of  July,  1813  ;  and  he  further  6aith, 
that,  about  the  time  of  the  expiration  of  the  aforesaid  lease 
to  the  respondents,  he  heard  the  aforesaid  Pierre  Van  Cort- 
landt say,  with  respect  to  patent  licenses,  that  the  lessees 
aforesaid  had  no  right  to  encumber  the  premises  with  them 
subsequent  to  the  time  of  said  lease. 


91 


To  the  fourth  additional  direct  interrogatory — The  de- 
ponent saith,  that  he  has  been  informed  by  different  persons 
who  said  that  they  had  worked  for  the  respondents,  at  the 
time  of  the  building  of  the  grist-mill,  dam,  and  raceway  in 
question,  that  the  stones,  composing  the  foundations  of 
said  grist-mill,  were  taken  from  off  the  demised  premises, 
and  were  easily  procured,  and  that  this  was  the  case,  also, 
with  respect  to  the  dam  and  raceway,  and  that  all  the  gravel 
for  the  said  dam  and  raceway  was  procured  on  said  pre- 
mises. The  deponent  having  intimated  to  the  respondent, 
Abraham  I.  Underbill,  that  the  stones  composing  the  foun- 
dation of  said  grist-mill  were  taken  from  off  said  premises, 
namely,  from  the  opposite  side  of  the  Croton  riven,  within 
the  bounds  of  the  demised  premises,  he  acknowledged  that 
it  was  so. 

To  the  fifth  additional  direct  interrogatory — The  depo- 
nent saith,  that,  as  to  the  dam  and  race  in  question,  the  lat- 
ter, for  the  distance  of  about  nine  rods,  commencing  from 
the  saw-mill,  consists  of  timber  and  plank,  and  the  remain- 
der of  it,  called  the  gravel  race,  consists  of  stones  and 
gravel,  and  some  wood,  that  is  to  say,  for  about  nineteen 
rods  it  is  dug  in  the  side  of  the  hill,  and  is  composed  of 
gravel  and  stones,  and  considerably  obstructed  by  the  roots 
of  willow  trees  for  some  distance  ;  from  thence,  for  about 
thirteen  rods,  it  consists  of  gravel  and  stones  at  the  bottom 
and  on  one  side,  and  on  the  other  of  wood  and  plank  and 
stones  ;  that  the  dam  then  commences,  consisting  of  stones 
and  some  wood,  and  extends  about  fifty-two  feet  to  a  small 
island,  or  rather  to  a  large  rock,  forming  part  of  said  island, 
that  it  then  extends  along  said  island  for  about  fifteen  rods, 
the  said  island  forming  the  same,  except  in  places  where  it 
was  necessary  to  raise  the  same  with  wood  and  stone  ;  that 
the  dam  then  continues  from  the  upper  end  of  said  island,  to 
some  distance  up  the  river,  and  then  turns  and  runs  to  the 
opposite  shore,  making  a  length,  from  the  upper  end  of  the 
island,  as  aforesaid,  of  about  twenty-two  rods,  to  the  best  of 


92 


his  remembrance  and  belief;  that  the  last  mentioned  part 
of  said  dam  consists  of  stones  and  wood,  plank,  and  some 
gravel,  and  also  of  some  rocks  which  appear  always  to  have 
lain  there  in  a  state  of  nature  ;  that  the  timber  in  said  dam 
is  supported  by,  or  butted  against,  said  rocks  in  certain 
places,  and  that  the  said  last  mentioned  part  of  said  dam,  is 
the  height  of  two  logs,  placed  sideways  upon  one  another. 

CROSS  EXAMINED. 

To  the  first,  second,  third,  and  fourth  cross  interrogato- 
ries— The  deponent  saith,  that  he  is  related,  as  he  has  been 
informed,  and  believes,  and  has  no  doubt,  to  Philip  and 
Pierre  Van  Cortlandt,  by  birth,  they  being  his  uncles,  Ca- 
tharine Van  Wyck,  the  deponent's  mother,  Gerard  G. 
Beckman,  his  uncle,  by  having  married  Cornelia  Van  Cort- 
landt, the  deponent's  aunt ;  and  that  he  is  in  a  similar  man- 
ner related  to  Philip  S.  Van  Rensselaer,  and  his  wife  ;  and 
the  deponent  further  saith,  that  he  has  not,  nor  has  he  ever 
had  any  legal  or  equitable  interest  in  the  event  of  this  suit. 

To  the  fifth  cross  interrogatory — The  deponent  has  never 
been  employed  in  building  any  mill  or  mills,  or  in  repair- 
ing them. 

To  the  sixth  cross  interrogatory — The  deponent  saith, 
that,  from  the  circumstance  of  his  having  viewed  and  ex- 
amined mills,  and  from  inquiries  he  has  made  from  time  to 
time,  respecting  the  cost  thereof,  from  persons  having  ex- 
perience in  the  business,  he  has  acquired  a  very  consider- 
able degree  of  knowledge  of  the  cost  of  building  mills  for 
manufacturing  purposes,  as  inquired  about  in  said  interro- 
gatory, but  that  he  never  paid  any  bills  of  expense,  rela- 
tive to  such  building  of  mills. 

To  the  seventh  cross  interrogatory — The  deponent  saith, 
that  he  has  viewed  dams  and  raceways,  at  different  times 
and  at  different  places,  but  that  he  only  knows  the  cost  of 
building  them,  from  the  information  of  those  who  had  them 
built,  or  had  worked  at  that  business. 


93 


To  the  eighth  cross  interrogator)- — The  deponent  saith. 
that,  he  believes,  he  knows  the  length  of  the  dam  in  ques- 
tion, and  that  he  has  a  general  knowledge  of  the  width  and 
depth  of  the  race  and  flue,  from  having  been  present  and 
assisting  in  measuring  the  same;  that,  as  to  the  dam,  he 
was  present  when  a  part  of  it  was  measured,  namely,  from 
the  head  of  the  raceway  to  the  upper  end  of  the  island  ; 
that  the  other  part  thereof  the  deponent  caused  to  be  mea- 
sured by  the  chain,  though  he  was  not  present  at  the  time  ; 
and  that,  on  another  occasion,  a  compass  and  chain  were 
made  use  of  in  taking  the  bearings  in  the  usual  way,  and 
the  deponent  was  present  at  the  time,  and  assisted.  And 
the  deponent  further  saith,  that  there  are  a  number  of 
rocks  and  large  stones  in  the  said  dam,  forming  a  part 
thereof,  and  which  appear  never  to  have  been  removed 
from  their  natural  situation,  and  he  does  not  know  nor  be- 
lieve, that  there  are  any  stones  composing  said  dam,  but 
what  were  found  on  the  spot,  or  close  by. 

To  the  ninth  cross  interrogatory — The  deponent  saith, 
that  he  never  was  employed  to  work  in  the  mills,  previous 
to  the  first  of  May,  1813;  but  that  he  understood,  that, 
Borne  considerable  time  before  the  expiration  of  the  lease, 
the  respondents  had  manufactured  as  much  as  one  hundred 
barrels  of  flour  in  twenty-four  hours  ;  but  that  this  was  at 
a  particular  time,  when,  it  was  said,  business  was  very 
good  ;  the  deponent  knows  the  same,  however,  only  from 
information. 

To  the  tenth  cross  interrogatory — The  deponent  saith, 
that,  as  he  has  before  mentioned,  in  his  answer  to  the  di- 
rect interrogatory,  he  viewed  the  mills,  dam  and  raceway 
in  question,  as  the  agent  of  Pierre  Van  Cortlandt,  deceased, 
and  that  he  did  view  and  examine  the  same,  on  the  22d  of 
November,  1813,  as  the  agent  aforesaid,  while  attending 
the  persons  who  were  employed  to  take  a  view  of  said 
premises  ;  he  does  not  know,  however,  that  the  respond- 
ents were  previously  apprised  of  the  said  view  and  exa- 


94 


roination,  had  and  made  on  the  said  22d  of  November, 
1813;  and  the  deponent  was  not  instructed  to  give  them 
any  such  previous  notice  ;  and  he  well  remembere  that 
Joshua  Underhill,  some  time  previous,  declared,  in  the 
presence  of  the  deponent,  that  he  would  not  leave  the  mat- 
ter* to  men  again. 

To  the  first  additional  cross  interrogatory — The  depo- 
nent saith,  that,  previous  to  the  expiration  of  the  respon- 
dents' lease,  Pierre  Van  Cortlandt,  deceased,  promised  the 
deponent  to  give  him  the  refusal  of  a  lease  of  the  mill  in 
question,  when  the  respondents'  lease  should  be  expired, 
but  that  no  writing  passed  between  them  on  that  subject, 
nor  was  any  such  lease  ever  made  out.  After  the  respon- 
dents quit  possession,  the  deponent,  living  in  the  family  of 
the  said  Pierre  Van  Cortlandt,  and  being  his  grandson, 
and  occasionally  transacting  his  business,  without  any 
charges,  the  said  Pierre,  upon  being  asked  by  the  depo- 
nent, if  he,  the  deponent,  might  employ  the  grist  mill  and 
appurtenances  and  water,  to  propel  the  same,  replied,  by 
asking  the  deponent,  how  much  would  be  the  interest  of 
eighteen  thousand  dollars  ?  And,  upon  the  deponent's  tell- 
ing him,  twelve  hundred  and  sixty,  he  asked  the  deponent, 
if  he  thought  he  would  be  able  to  make  or  pay  as  much, 
(he  does  not  recollect  which ;)  to  which  the  deponent  an- 
swered, that  he  thought  he  would  be  able  ;  that  the  said 
Pierre,  shortly  afterwards,  gave  the  deponent  the  key  of 
the  mill,  and  told  him  to  do  the  best  he  could,  and  a  few 
days  afterwards,  gave  the  deponent  permission  to  put  Wal- 
ter Fowler  into  the  dwelling-house  ;  the  deponent,  there- 
upon, took  possession  of  said  dwelling-house,  mill  and  wa- 
ter, soon  afterwards,  by  leasing  the  same  to  said  Walter 
Fowler,  until  the  first  day  of  April,  1814.  The  deponent 
never  became  bound,  nor  assumed  to  pay,  as  a  considera- 
tion, for  the  use  of  said  dwelling-hou*e,  mill  and  water,; 
nor  any  part  of  said  property,  the  appraised  value  thereof, 
nor  auy  part  thereof,  nor  the  sum  to  be  recovered  by  thi 


95 


respondents  in  this  suit,  nor  any  part  thereof;  and  the  de- 
ponent never  stood  in  any  other  relation  to  the  said  Pierre 
Van  Cortlandt,  in  regard  to  said  house,  mill  and  water, 
than  as  tenant  at  will,  and  liable  to  account  to  him  for  the 
use  of  the  same,  in  case  he  should  require  it ;  but  he  never 
demanded  of  the  deponent  rent  therefor,  though  the  depo- 
nent presumes  he  would  have  required  of  him  some  rea- 
sonable return  for  the  use  of  said  premises,  after  allowing 
the  deponent  a  reasonable  compensation  for  his  services  in 
procuring  business  for  said  mill. 

To  the  second  additional  cross  interrogatory — The  de- 
ponent saith,  that,  about  the  time  when  the  above  mention- 
ed lease  to  Walter  Fowler  expired,  the  deponent  leased 
the  above  mentioned  premises  to  him  again,  for  one  year, 
from  the  first  of  April,  1814,  and  the  above  mentioned 
Pierre  Van  Cortlandt,  having  died  before  the  first  of  AprU, 
1815,  Catharine  Van  Wyck,  one  of  the  devisees  of  said 
Pierre  Van  Cortlandt,  directed  the  deponent,  in  March, 
1815,  to  keep  possession  of  said  mill ;  and,  in  March,  1816, 
she  executed  to  the  deponent  an  instrument  in  writingi 
authorizing  him,  as  far  as  her  right  extended,  to  keep  pos- 
session thereof  till  April,  1817  ;  that  the  terms  of  said  first 
lease  to  Walter  Fowler,  for  the  dwelling-house,  mill  and 
water,  to  the  best  of  the  deponent's  remembrance  and  be- 
lief, were,  viz.  The  deponent  was  to  be  at  the  expense 
of  oil,  tallow,  beeswax,  brands  and  picks,  necessary  for  said 
mill,  and  the  repairs  necessary  to  keep  said  mill  in  running 
repair,  new  bolts  and  bolting-cloths  excepted,  and  of  the 
hire  of  a  scow  and  a  small  row-boat,  for  the  use  of  the  mill, 
and  suffer  said  Walter  to  get  some  fire-wood  for  the  use  of 
the  mill.  The  said  Walter,  on  his  part,  in  consideration 
of  the  premises,  was  to  pay  five  cents  per  bushel  for  all 
grain  ground  or  manufactured  in  the  said  mill,  one  cent 
per  bushel  for  what  grain  passed  through  the  smut-ma- 
chine, three  shillings  per  bushel  for  old  flour  that  should 
be  re-manufactured,  and  an  amount  equal  to  one  half  of 


96 


what  he  should  get,  above  seven  cent?  a  bushel,  for  grind- 
ing and  manufacturing  grain  ;  he  was,  also,  to  keep  the  ac- 
counts of  the  mill,  and  purchase  barrels  for,  and  on  account 
of  those  who  should  have  grinding  done  at  the  mill,  and 
use  his  best  endeavours  to  procure  business  for  the  said 
mill.    In  the  spring  of  1314,  the  said  Walter  Fowler  ren- 
dered the  deponent  an  account  of  the  work  done  in  the 
said  mill,  and,  after  deducting  the  amount  of  the  expenses 
incurred,  which,  as  above  set  forth,  were  to  be  borne  by 
the  deponent,  the  balance,  received  by  the  deponent,  was 
only,  to  the  best  of  the  deponent's  remembrance  and  be- 
lief, about  three  hundred  dollars  ;  and  that  the  terms  of  the 
aforesaid  second  lease  to  said  Fowler,  were,  to  the  best  of 
the  deponent's  remembrance  and  belief,  similar  to  the 
lease  last  mentioned,  with  this  addition,  namely,  the  said 
Fowler  was  to  have  the  use  of  some  land,  and  that  the  de- 
ponent should  be  benefited  by  the  penalty  arising  from  the 
non-performance  of  contracts,  to  supply  said  mill  with 
grain,  should  there  be  any  such  contract  made  with  the  said 
Fowler,  on  which  such  penalty  should  be  incurred  ;  that  by 
the  account  rendered  to  the  deponent  by  said  Walter  Fow- 
ler, in  relation  to  said  mill,  from  the  first  of  April,  1  8 14,  to  the 
first  of  April.  1815,  the  expenses,  as  above  mentioned  and  set 
forth,  to  be  borne  by  the  deponent,  nearly  equalled  the  rent 
which  the  said  Fowler  was  to  pay  for  the  use  of  said  mill  and 
prem'ses,  in  manner  above  mentioned  ;  and  the  deponent 
further  saith,  that  the  whole  amount  of  rent  for  the  mill, 
dwelling-house,  water,  &c.  as  leased  to  said  Walter,  in 
manner  above  mentioned,  from  the  time  he  first  took  pos- 
session thereof,  in  September,  1813,  till  the  first  of  April, 
1815,  did  not  exceed,  to  the  best  of  his  remembrance  and 
belief,  seven  hundred  dollars,  from  which  amount  the  ex- 
penses to  be  borne  by  the  deponent,  as  above  mentioned, 
were  to  be  deducted ;  and,  lastly,  the  deponent  saith,  that 
said  Fowler  has  not  rendered  to  him  a  particular  account 


97 

of  the  business  and  expenses  of  said  mill  done  and  incur- 
red since  the  first  of  April,  1815. 

To  the  third  additional  cross  interrogatory — The  depo- 
nent saith,  that  he  never  did,  directly  or  indirectly,  give 
nor  hold  forth  any  consideration  whatever  to  the  said  Wal- 
ter and  William  Fowler,  nor  either  of  them,  to  induce 
them,  or  either  of  them,  to  become  witnesses  in  this  suit, 
nor  to  induce  them,  or  either  of  them,  to  establish  any  fact 
whatever  by  their  testimony,  or  the  testimony  of  either  of 
them,  in  this  suit ;  nor  does  he  know  that  any  person 
whatever  has  given,  or  held  forth,  any  consideration  what- 
ever, to  said  Walter  and  WHliam,  nor  either  of  them,  to 
induce  them,  or  either  of  them,  to  become  witnesses  in 
this  suit,  nor  to  induce  them,  or  either  of  them,  to  esta* 
blish  any  fact  whatever  by  their  testimony,  or  the  testimo- 
ny of  either  of  them,  in  this  suit. 

To  the  fourth  additional  cross  interrogatory — The  de- 
ponent saith,  that  after  the  8th  of  July,  1813,  and  before 
Abraham  I.  Underhill  quit  the  said  demised  premises,  the 
deponent  learning,  from  his  application  to  the  said  Pierre 
Van  Cortlandt,  deceased,  that  he  was  willing  to  sell  to  the 
deponent,  absolutely,  the  mill  seat  whereon  the  grist  mill 
aforesaid,  built  by  the  Underhills,  stood,  together  with  the 
mill  and  water  sufficient  to  propel  the  same,  for  eighteen 
thousand  dollars,  the  deponent,  at  his  own  instance,  and 
by  his  own  authority,  and  not  at  the  request  of  any  person 
whatever,  called  on  Joshua  Underhill,  and  inquired  of  him, 
whether  the  respondents  would  take  the  deponent's  bond 
for  eighteen  thousand  dollars,  to  be  secured  by  a  mortgage 
to  be  executed  by  the  said  Pierre  Van  Cortlandt,  on  said 
mill  seat,  and  mill  and  water  to  propel  the  same,  the  in- 
terest to  be  paid  annually,  and  the  principal  by  instal- 
ments, the  mill  to  be  insured  for  a  few  thousand  dollars, 
and  the  policy  to  be  assigned  as  a  collateral  security  ;  that 
the  said  Underhill  answered,  that  he  would  consult  his 
brother,  Abraham  I.  Underhill,  on  the  subject,  and  would 

13 


98 


give  the  deponent  an  answer.  The  deponent,  shortly  af- 
terwards, understood  that  they  had  declined  entering  into 
any  such  arrangement ;  and  the  deponent  saith,  that  his 
reason  for  making  said  inquiry  of  the  respondents  was, 
that  he  contemplated  that,  if  the  respondents  would  take 
the  deponent's  bond,  secured  in  manner  aforesaid,  as  so 
much  money,  on  account  of  said  Pierre,  and  if  the  said 
Pierre,  in  order  to  make  his  peace  with  the  respondents, 
would  agree  that  the  deponent  should  give  his  bond  as 
aforesaid,  to  the  respondents,  on  his  account,  and  should, 
thereupon,  and  for  no  other  nor  further  consideration 
than  the  deponent's  giving  such  bond,  absolutely  convey  to 
the  deponent  a  good  and  indisputable  title,  in  fee  simple, 
for  the  said  mill  seat  and  mill,  and  full  supply  of  water 
therefor,  to  be  taken  out  of  the  adjoining  race,  without 
the  deponent's  being  obligated  to  keep  the  dam  and  race  in 
repair ;  that  then  it  might  possibly  answer  for  the  depo- 
nent to  make  said  purchase.  The  deponent  saith,  that 
the  reason  for  proposing  that  the  mortgage,  before  men- 
tioned, should  be  executed  by  the  said  Pierre  Van  Cort- 
landt,  before  the  conveyance  of  said  premises  to  the  de- 
ponent, was,  that  the  deponent  did  not  conceive  himself 
in  a  situation  that  would  enable  him  to  give  a  mortgage 
free  from  the  right  of  dower.  And  the  deponent  saith, 
that  no  writings  passed  between  him  and  the  said  Pierre 
Van  Cortlandt,  on  the  subject  above  mentioned,  nor  be- 
tween the  deponent  and  the  respondents,  nor  either  of 
them.  And  the  deponent  further  saith,  that  when  he 
mentioned  to  his  mother,  Catharine  Van  Wyck,  the  pro- 
posal aforesaid,  to  purchase  said  mill,  &c.  she  disapproved 
thereof  totally,  and  the  deponent  himself  had,  afterwards, 
reason  to  be  glad  that  he  had  not  made  said  purchase,  on 
account  of  the  small  income  arising  from  said  mill.  And, 
lastly,  the  deponent  saith,  that  as  to  the  expression  men- 
tioned, and  inquired  about,  in  said  interrogatory,  as  hav- 
ing been  made  by  him,  he  thinks  it  not  improbable  he  may 


99 


have  made  some  observations  of  that  kind,  meaning,  how- 
ever,  nothing  more  than  that  if  the  respondents  had  agreed 
to  such  an  arrangement,  proposed  to  them  by  the  depo- 
nent, in  manner  aforesaid,  and  had  taken  such  bond  and 
mortgage,  that  then  they  might  have  got  their  money  by 
foreclosing  said  mortgage,  and,  in  case  of  a  deficiency, 
would  have  held  the  deponent  on  his  bond. 

Thomas  Burling  testifies  as  follows,  viz.  Testimony 

f  '  of  Thoms» 

To  the  twentieth  interrogatory — The  deponent  saith,  i,uUot- 
that,  as  to  the  paper  writing  marked  with  the  letter  A,  the 
same  is  a  true  copy  of  an  account  furnished  to  the  depo- 
nent and  William  Burling,  his  brother,  by  Joshua  Under- 
bill &  Co.  The  said  account  was  furnished,  as  aforesaid, 
under  the  circumstances  and  on  the  occasions  as  follow, 
to  wit :  When  the  said  Joshua  Underhill  &  Co.  took  their 
lease  of  the  Van  Cortlandts,  as  aforesaid,  the  deponent 
and  his  aforesaid  brother,  took  an  interest  in  the  business 
of  the  mills,  and  made  an  agreement  with  them,  by  which 
he  and  his  said  brother  agreed  to  advance  money  for  car- 
rying on  the  concern,  and  the  said  Joshua  Underhill  &  Co. 
were  to  have  a  commission  on  buying  the  wheat ;  that  ad- 
vances of  money  were  accordingly  made,  till,  at  length, 
the  deponent,  not  finding  it  convenient  to  advance  any 
more,  he  and  his  said  brother  came  to  a  settlement  of  ac- 
counts with  the  said  Joshua  Underhill  and  Co.  on  which 
occasion  they,  the  said  Underhills,  furnished  the  account 
in  question,  of  which  the  aforesaid  paper-writing,  marked 
with  the  letter  A,  is  a  true  copy.  And  the  deponent  saith, 
that  the  original  of  said  accounts  are  in  the  possession  of 
his  aforesaid  brother,  William  Burling,  and  that  the  same 
are  in  the  hand-writing  of  the  said  Joshua  Underhill 
&  Co. 

William  Burling  testifies  as  follows,  viz.  Testimony 
To  the  twentieth  interrogatory — The  deponent  saith,  B^urluf•!"lil,, 


100 


that,  as  to  the  paper-writing  marked  with  the  letter  A, 
he  has  seen  the  same  paper,  but  he  does  not  know  whe- 
ther or  not  it  is  a  true  and  correct  copy  from  the  original 
accounts  now  in  the  deponent's  possession,  and  which  he 
now  produces  and  deposits  with  the  examiner,  the  same 
being  marked,  respectively,  O  No.  1.  O  No.  2.  and  O 
No  3.  The  deponent  and  his  brother,  Thomas  Burling, 
having  been  concerned  with  the  respondents  in  the  milling 
business,  they  afterwards  came  to  a  settlement  with  the 
respondents,  on  which  occasion  they  furnished  the  depo- 
nent and  his  said  brother  with  the  aforesaid  original  ac- 
counts, marked  and  numbered  as  aforesaid ;  and  lastly, 
the  deponent  saith,  that  he  is  not  certain  in  whose  hand- 
writing the  said  originals  are,  but  it  appears  to  him  that 
they  are  either  in  the  hand-writing  of  one  or  both  of  the  re- 
spondents, or  of  some  person  in  their  employ.  He  per- 
fectly recollects,  however,  that  the  said  originals  were 
handed,  on  the  occasion  aforesaid,  to  the  deponent  and 
brother  by  the  respondents. 

Testimony     Robert  M'Queen  testifies  as  follows,  viz. 

pt     Robert  > 

M'Queen.  To  the  first  interrogatory — The  deponent  is  a  mill- 
wright and  resides  in  the  city  of  New- York,  and  has  been 
employed  in  building  and  superintending  the  building  of 
mills  for  twenty  years  past. 

To  the  eleventh  interrogatory — The  deponent  saith,  that 
in  the  month  of  November,  of  the  year  1813,  he,  together 
with  Justus  Thorn  and  Scudder  Waring,  at  the  request  of 
the  Van  Cortlandts,  took  a  view  of,  and  examined  the  mills, 
dam,  and  raceway,  particularly  mentioned  and  inquired  of 
5n  said  interrogatory  ;  and  he  understood,  at  the  time,  that 
the  same  was  for  the  purpose  of  enabling  the  deponent  and 
the  others  to  form  a  just  and  true  estimate  of  the  value  of 
the  said  mills  and  machinery,  dam,  and  raceway  ;  that  he, 
together  with  the  others,  took  a  minute  and  particular  view 
of  the  premises,  and  they  then  proceeded  to  make  a  valua- 
tion pf  the  said  mills  ai?d  appurtenances;  that,  in  making 


101 


their  said  estimate,  they  valued  the  dam,  the  raceway,  mills, 
and  machinery,  all  separately,  but  he  does  not  recollect  what 
such  separate  estimate  was  ;  and  they  then  computed  the 
whole  value  of  the  aforesaid  premises  at  six  thousand  five 
hundred  dollars  ;  he  thinks  there  was  an  old  saw-mill, 
which  was  worth  a  very  trifling  sum,  included  in  the  esti- 
mate, and  he  thinks,  though  he  is  not  certain,  that  the 
dwelling-house  was  also  included. 

To  the  fifteenth  interrogatory — The  deponent  saith,  that 
as  he  has  before  mentioned,  he  viewed  the  mills  and  pre- 
mises in  question,  in  the  manner  before  related,  and  that, 
in  his  opinion,  the  cost  of  building,  at  the  place  where  the 
said  mills  are  now  standing,  entire  new  mills  of  the  same 
dimensions,  with  the  same  number  of  run  of  stones,  and 
with  all  the  requsite  machinery,  would  not  exceed  between 
sixteen  and  seventeen  thousand  dollars,  supposing  the  place 
to  be  in  a  state  of  nature,  and  a  new  foundation,  dam,  and 
raceway  to  be  made  at  the  same  time.  The  deponent's 
said  opinion  is  founded  on  the  estimate  which  he  made  as 
aforesaid,  of  the  said  mills,  dam,  and  raceway,  in  the  man- 
ner before  stated,  and  also,  on  the  experience  he  has  had 
in  the  business  of  building  mills  and  their  appurtenances ; 
and  the  deponent  saith,  that  in  making  their  examination 
as  aforesaid,  they  were  accompanied  by  a  stone  mason, 
who  was  able  to  compute  the  cost  of  the  stone-work. 

To  the  sixteenth  interrogatory — The  deponent  saith, 
that,  as  he  has  already  mentioned,  he  viewed  and  examined 
the  dam  and  raceway  in  question,  in  the  manner  before  re- 
lated ;  that  he  did  not  measure  the  dam  exactly,  on  account 
of  the  height  of  the  water,  though  by  pacing  along  the  side 
thereof,  a  part  of  the  way,  they  formed  some  estimate  of 
its  dimensions,  but  that  they  were  enabled  to  measure  the 
raceway  more  accurately  :  the  deponent  is  of  opinion,  that 
supposing  the  places  where  the  said  dam  and  raceway  now 
are,  were  in  a  st^te  of  nature,  it  would  cost  about  three 
thousand  five  hundred  dollars  to  make  and  construct  a  dam 


104  J 

and  raceway  similar  to  those  in  question  :  the  deponent 
has  had  6ome  experience  in  works  of  that  kind,  which  en- 
ables him  to  form  an  estimate  on  the  subject,  in  the  manner 
above  stated. 


CROSS  EXAMINED. 

To  the  fifth  cross  interrogatory— The  deponent  saith, 
that  he  has  been  engaged  in  the  mill-wright  business  for 
abont  twenty  years  in  this  country  ;  previous  to  which  he 
worked,  as  such,  in  Scotland  and  in  England  for  about  ten 
years ;  that  the  first  work  of  the  kind  which  he  performed 
in  this  country,  was  making  the  machinery  for  Caldwell's 
mil  s  in  Albany,  and  the  works,  or  running  gear  for  the 
mills  of  Stephen  Van  Rensselaer,  in  said  place ;  that  he 
has  also  made  the  machinery  for  the  mills  of  Thomas  L. 
Whitbeck,  a  few  miles  above  Albany;  of  W.  &  I.  Minturn,. 
near  Troy  ;  Dominick  Lynch,  at  Rome,  in  this  state  ;  Ste- 
phen N.  Bayard,  at  Seneca  falls,  and  a  great  number  of 
others,  in  different  parts  of  this  state,  which  the  deponent 
might  enumerate  if  necessary  ;  but,  that  since  the  establish- 
ment of  his  furnace  in  this  city,  (New- York,)  he  has  not 
attended,  in  person,  to  the  building  of  mills,  though  he  has 
sent  persons,  in  his  employ,  to  attend  to  such  business  : 
some  of  the  mills  aforesaid,  were  for  manufacturing  pur- 
poses, and  those  of  Mr.  Lynch  contained  four  run  of  stones. 

To  the  sixth  cross  interrogatojy — The  deponent  saith, 
that  the  mills  of  Minturn,  before-mentioned,  were  built  by 
the  deponent :  they  contained  four  run  of  stones,  and  were 
what  are  called  merchant-mills.  The  deponent  paid  bills 
for  the  materials  used  in  building  said  mills,  excepting  the 
bolting-cloths,  and  he  has  paid  in  like  manner,  similar  bills 
in  other  cases,  where  he  has  been  employed  in  building 
mills. 

To  the  seventh  cross  interrogatory — The  deponent 
Saith,  that  he  is  acquainted  with  the  expense  of  build- 
ing dams  and  raceways,  from  th-j  circumstance  of  seeing 
the  raceway  made  for  Lynch'g  mills,  at  the  time  the  de- 


103 


ponent  made  the  machinery  for  the  mills,  and  he  had  op- 
portunities  of  knowing  the  labour  and  expense  thereof; 
and  that  this  was,  also,  the  case  at  Whitbeck's  mills  and 
i  Minturn's  before  mentioned  ;  and  the  deponent  is  concern- 
I  ed  in  a  mill  at  Waterford,  the  dam  of  which  was  rebuilt  last 
summer,  and  the  deponent  is  well  acquainted  with  it,  and 
knows  the  expense  thereof,  from  having  paid  his  proportion 
thereof. 

To  the  eighth  cross  interrogatory — The  deponent  saith4 
that  he,  and  the  other  persons  with  him,  as  aforesaid,  mea- 
sured the  width  and  depth  of  the  raceway  in  question, 
and  that  they  measured  the  length  of  it  by  pacing  the 
same,  and  that,  as  he  has  before  mentioned,  they  mea- 
sured off  the  dam  in  question,  in  the  manner  he  has  be- 
fore mentioned,  but  not  accurately,  on  account  of  the 
water  overflowing  a  part  thereof,  and  such  parts  as  they 
did  measure  corresponded  with  the  statement  made  by  Mr. 
Van  Cortlandt ;  that  there  are  a  number  of  large  stones  in 
said  dam,  but  it  appeared  to  the  deponent  that  many  of 
them  had  not  been  removed  from  their  natural  situation. 

To  the  tenth  cross  interrogatory — The  deponent  saith, 
that  it  was  by  the  request  of  the  Messrs.  Van  Cortlandts, 
that  he  viewed  the  premises  in  question,  in  the  manner 
before  related,  though  his  impression  at  the  time  was,  that 
the  respondents  were  apprised  of  the  same,  but  he  under- 
stood shortly  afterwards,  they  were  unacquainted  there- 
with. 

Justus  Thorn  testifies  as  follows,  Viz.  Testimony  <»r 

To  the  first  interrogatory — The  deponent  is  a  mill- 
wright, and  resides  at  Peekskill,  and,  for  twenty-eight 
years,  has  been  employed  in  working  at  the  millwright 
business,  and  in  building  and  superintending  the  building 
of  mills. 

To  the  eleventh  interrogatory — The  deponent  saith, 
that  he  is  acquainted  with  the  mills  and  premises  mention- 
ed and  referred  to  in  said  interrogatory  ;  and  that,  in  the 


101 


month  of  November,  1813,  he,  together  with  Robert 
M'Queen,  and  Scudder  Waring,  at  the  request  of  General 
Van  Cortlandt,  viewed  and  examined  the  said  mills,  and 
the  machinery  belonging  thereto,  together  with  the  dam 
and  raceway,  and  that  the  same  was  done  for  the  purpose 
of  enabling  the  deponent  and  the  other  persons,  as  afore- 
said, to  form  a  just  and  accurate  estimate  of  the  value  of 
the  said  mills  and  machinery,  dam,  and  raceway.  In  the 
first  place  they  examined  the  dam  and  raceway,  and  then 
proceeded  to  the  mills,  and  took  a  particular  view  of  the 
works  and  machinery,  and  of  the  foundation  of  the  mill 
and  of  the  building  itself,  and  that  they  had  with  them  a 
mill-stone  maker,  and  a  mason,  in  order  to  examine  the 
mill  stones  and  foundation  ;  and  that,  after  completing  the 
said  examination,  they  proceeded  to  make  an  estimate  of 
the  value  of  said  mills  and  machinery,  dam,  and  raceway ; 
and  the  deponent,  together  with  the  said  M'Queen  and 
Waring,  concurred  in  opinion,  that  the  just  value  of  the 
same,  according  to  the  best  of  their  judgment,  from  the 
view  aforesaid,  was  six  thousand  five  hundred  dollars,  not 
including,  however,  the  dwelling-house. 

To  the  fifteenth  interrogatory — The  deponent  saith, 
that,  in  his  answer  to  the  eleventh  interrogatory,  he  has  al- 
ready mentioned  the  view  and  examination  of  the  mills 
and  premises  in  question,  which  he  made,  together  with 
Mr.  M-Queen  and  Waring ;  and  that,  on  that  occasion,  they 
ascertained  the  dimensions  of  said  mills,  and  the  number 
of  run  of  stones  contained  therein,  and,  in  the  opinion  of 
the  deponent,  the  cost  of  building  and  erecting,  at  the 
place  aforesaid,  where  the  said  mills  are  standing,  new 
mills  of  the  same  size  and  dimensions,  with  the  same  num- 
ber of  run  of  stones,  and  requisite  machinery,  would  be 
between  fifteen  and  sixteen  thousand  dollars  ;  but  it  would 
cost  something  less  than  that,  in  case  the  old  foundation 
should  be  used  in  erecting  such  new  mills.  The  depo- 
nent's said  opinion  is  founded  upon  the  estimate  and  cal- 
culations made  by  him,  at  the  time  of  viewing  the  pre- 


105 


mises,  in  the  manner  before-mentioned.  The  deponent, 
and  the  aforesaid  Robert  M'Queen,  conversed  together, 
at  the  time,  relative  to  the  expense  of  building  an  entire 
new  mill,  in  the  manner  inquired  about  in  said  interroga- 
tory, after  having  made  the  examination  aforesaid,  and 
calculated  in  their  own  minds  the  particular  costs  of  such 
an  undertaking,  by  means  of  the  experience  they  possessed 
on  the  subject,  and  they  concurred  in  opinion,  that  such 
new  mills  might  be  erected,  as  aforesaid,  for  the  sum  be- 
fore mentioned.  The  deponent  would  be  willing  to  un- 
dertake the  business,  at  this  time,  as  he  would  have  done 
at  the  time  aforesaid,  for  the  sum  before  mentioned. 

To  the  eighteenth  interrogatory — The  deponent  saith, 
that  when  he,  together  with  M'Queen  and  Waring,  viewed 
the  mills  last  mentioned,  they,  at  the  same  time,  went  into 
the  mill  occupied  by  Van  Cortlandt  and  Hollman,  and 
that  their  object  was  to  ascertain  its  dimensions,  and  to 
see  the  condition  and  state  of  repair  of  said  mill  and  ma- 
chinery, in  order  that  they  might  form  a  comparison  be- 
tween the  said  mill  and  the  one  before  mentioned,  occu- 
pied by  the  respondents.  The  deponent  is  of  opinion, 
that  the  building,  or  mill  house,  of  the  said  Van  Cortlandt 
and  Hollman's  mill,  is  worth  nearly  as  much  again  as  that 
of  the  other  mill,  and  that,  as  to  the  machinery  of  Van 
Cortlandt  and  Hollman's  mill,  what  is  called  the  small  ma- 
chinery, is  a  great  deal  better,  and  more  valuable,  than 
that  of  the  other  mill ;  and  that  the  large  machinery  is, 
also,  better  than  that  of  the  other  mill,  though  the  differ- 
ence is  not  so  great  as  between  the  small  machinery.  The 
said  mill  of  Van  Cortlandt  is  larger  than  the  other  mill,  and 
contains  more  room,  having  more  floors,  and  being  capa- 
ble of  more  storage.  He  remembers  when  the  said  mill 
was  building,  and,  to  the  best  of  his  recollection,  it  is  about 
eighteen  years  ago. 


14 


106 


CROSS  EXAMINED. 

To  the  fifth  cross  interrogatory — The  deponent  saith, 
that  he  began  to  learn  the  business  of  a  mill-wright  twenty- 
eight  years  ago,  si:ce  which  time  he  has  been  employed 
in  building  a  great  number  of  mills,  in  different  places,  as 
master  workman  in  said  business,  among  which  are  the 
mills  at  Kingsbridge,  about  fourteen  miles  from  the  city  of 
New-York,  which  contain  eight  run  of  stories,  and  are  em- 
ployed in  manufacturing  flour.  The  deponent,  however, 
did  not  begin  the  building  of  the  said  mills,  but  he  under- 
took the  completion  of  the  same  after  two  ruu  of  stones 
were  put  up,  or,  rather,  he  and  his  partner  undertook  the 
same,  and  worked  together.  He,  afterwards,  was  em- 
ployed by  George  Philips,  at  Poughkcepsie,  and  built  an 
additional  story  to  his  mills,  and  put  up  an  additional  set 
of  machinery  ;  that  he  was  also  employed  by  Governor 
Lewis  to  build  a  flour  mill,  a  plaister  mill,  a  fulling  mill, 
and  saw  mill,  in  Dutchess  county  ;  that  he  also  put  up 
three  run  of  stones  for  Henry  B.  Livingston,  at  Uhinebeck  ; 
and  he  built  two  new  mills  at  the  Nine-Partners,  and,  also, 
a  mill  of  two  run  of  stones  for  George  D.  Wickham,  on 
the  Delaware  river,  or  rather,  what  is  called  the  ten  mile 
river.  The  deponent  could,  if  necessary,  enumerate  ma- 
ny other  mills  which  he  has  erected  in  different  places  ; 
and  that  most  of  the  mills  built  by  him,  as  aforesaid,  con- 
tained machinery  for  manufacturing  purposes. 

To  the  sixth  cross  interrogatory — The  deponent  saith, 
that  he  has  a  knowledge  of  the  cost  of  building  mills  for 
manufacturing  purposes,  and  has  acquired  the  same  in  the 
manner,  and  by  the  means  mentioned  in  his  answer  to  the 
last  preceding  interrogatory.  The  deponent  has  paid  bills 
of  the  expense,  relating  to  the  mill-wright  business,  and 
has  had  bills  paid  to  him  for  the  work  performed  by  him, 
as  above  mentioned,  but  he  has  never  built  a  mill  for  him- 
self, nor  has  he  ever  kept  a  particular  account  of  the  en- 
tire expense  of  erecting  a  new  mill. 


107 


To '  the  seventh  cross  interrogatory — The  deponent 
saith,  that  he  has  built  a  great  many  dams  and  raceways, 
connected  with  the  mills  built  by  him,  as  before  mentioned, 
but  has  never  paid  any  of  the  bills  of  expense,  except  for 
the  labour.  The  deponent,  however,  from  his  general 
knowledge  on  the  subject,  thinks  he  is  able  to  form  a  pretty 
good  opinion  of  the  cost  of  building  the  same. 

To  the  eighth  cross  interrogatory — The  deponent  saith, 
that  he  knows  the  dimensions  of  the  raceway  and  flue,  as 
inquired  of  in  the  said  interrogatory ;  that  the  raceway  is 
thirty-two  rods  in  length,  about  twelve  feet  in  width,  on 
an  average  ;  at  the  surface,  about  three  feet,  eight  inches 
in  depth,  though,  in  one  or  two  places,  considerably  deep- 
er. The  dam  he  was  not  able  to  measure,  on  account  of 
the  water  running  over  it.  In  viewing  the  said  dam  it  did 
not  appear  to  the  deponent,  that'  there  were  any  large 
stones  therein  that  had  ever  been  removed  from  their  na- 
tural place. 

Scudder  Waring  testifies  as  follows,  viz.  Testii 
To  the  1st  interrogatory — The  deponent  is  a  mill-wright  waring! 
by  trade,  and  resides  in  Cortlandt-town,  in  the  county  of 
West-Chester.  He  has  been  in  the  habit,  for  many  years, 
of  working  at  mills,  as  a  mill-wright,  but  he  never  super- 
intended the  building  of  mills  but  once,  which  were  mills 
belonging  to  the  Messrs.  Doughtys,  in  Dutchess  county. 

To  the  1 1th  interrogatory — The  deponent  saith,  that  he 
is  well  acquainted  with  the  mills  mentioned  and  described 
in  said  interrogatory,  and  that  he  worked  in  the  same 
nearly  twenty  years,  as  a  journeyman  mill-wright,  but  that 
he  never  made  such  a  particular  view  and  examination 
thereof  as  is  inquired  about  in  said  interrogatory,  till  after 
the  first  of  May,  1813,  and  that  it  was  on  the  twenty- 
second  day  of  November,  1813,  that  he  made  a  particular 
examination  thereof,  for  the  purpose  of  enabling  him  to 
form  a  just  and  accurate  estimate  of  the  value  of  said 


108 


mills  and  machinery,  dam,  and  raceway,  and  that  Robert 
M'Queen  and  Justus  Thorn  were  associated  with  him  in 
making  the  said  view  and  examination,  in  addition  to  whom 
there  was  a  stone  mason  for  the  purpose  of  examining  the 
foundation,  and  a  mill-stone-maker,  named  Egerton,  to 
the  best  of  his  recollection,  for  the  purpose  of  examining 
the  mill-stones  of  said  mill.  After  taking  a  complete  view 
of  the  said  premises,  and  examining  the  different  parts 
thereof,  .the  deponent  and  the  other  persons  above  men- 
tioned, concurred  in  estimating  the  said  mills  and  machi- 
nery, dam,  raceway,  and  premises,  exclusive  of  the  dwell- 
ing house,  as  being  worth  six  thousand,  five  hundred  dol- 
lars, and  no  more.  In  taking  the  view  aforesaid,  they 
made  a  thorough  examination  of  all  the  said  premises,  and 
took  pains  to  inspect  the  various  parts  thereof,  and  the 
condition  they  were  in,  in  order  to  form  a  correct  estimate 
of  their  then  present  value. 

To  the  fifteenth  interrogatory — The  deponent  saith, 
that,  as  he  has  above  mentioned,  he  viewed  the  mills  and 
premises  in  question,  and  that  the  dimensions  of  the  mill, 
and  the  number  of  the  run  of  stones  were,  on  that  occa- 
sion, taken,  and  ascertained,  as  inquired  about  in  said  in- 
terrogatory. The  deponent  is  of  opinion,  that  an  entire 
new  mill  of  the  same  dimensions,  and  with  the  same  num- 
ber of  run  of  stones,  and  with  all  the  requisite  machinery, 
might  be  erected,  at  the  same  place,  for  about  twelve 
thousand  dollars,  setting  the  same,  however,  on  the  same 
foundation,  and  the  deponent  formed  said  opinion  upon 
the  estimate  and  calculation  made  as  above  mentioned. 

To  the  eighteenth  interrogatory — The  deponent  saith, 
that  he  is  well  acquainted  with  the  mill  occupied  by  Phi- 
lip Van  Cortlandt  and  John  F.  Ilollman.  He  has  com- 
pared the  size  and  dimensions  thereof,  and  the  condition 
and  st^te  of  its  repair,  with  the  size  of  the  other  mill,  oc- 
cupied by  the  respondents,  and,  in  his  opinion,  the  first 


109 


mentioned  mill  is  worth  as  much  again  as  the  other.  The 
said  first  mentioned  mill  is  forty-five  feet  square,  and  has 
five  and  a  half  floors,  and  the  addition,  which  was  after- 
wards joined  to  it,  is  fifteen  feet  by  forty-five,  and  has  two 
floors  ;  that  the  other  mill  of  the  respondents  is  sixty  feet 
by  thirty  feet,  and  has  four  floors,  and  the  addition  to  it  is 
sixty  feet  by  twenty-one,  and  has  three  floors,  that  it  has 
also  six  run  of  stones,  which  is  one  more  than  the  first 
mentioned  mill,  but  which  said  first  mentioned  mill  is,  ne- 
vertheless, capable  of  more  storage,  and  can  perform,  as 
he  should  suppose,  nearly  as  much  work,  though  he  is  not 
certain  which  mill  will  do  the  most  work.  The  said 
Hollman's  mill  is  in  much  better  repair  than  the  other,  the 
building  being  sound  and  strong,  and  the  works  and  ma- 
chinery are  also  better.  The  deponent  remembers  when 
the  said  Hollman's  mill  was  built,  and,  to  the  best  of  his 
recollection,  it  is  twenty  years  ago. 

To  the  last  interrogatory — The  deponent  saith,  that  the 
dam  mentioned  in  the  interrogatories,  and  also  the  race- 
way and  flue,  were  a  good  deal  out  of  repair  at  the  time 
the  respondents  quit  possession,  and  much  of  the  timber 
composing  the  same  was  rotten,  so  that  considerable  re- 
pairs were  necessary. 

CROSS  EXAMINED. 

To  the  fifth  cross  interrogatory — The  deponent  saith, 
that  he  has  already  mentioned  the  experience  he  has  had 
in  the  business  of  a  millwright,  and  in  building  mills;  and 
that  the  mill,  of  which  he  superintended  the  building,  for 
the  Doughtys,  contained  only  two  run  of  stones,  and  was 
employed  in  country  business,  but  it  contained  a  superfine 
bolt,  and  elevators. 

To  the  sixth  cross  interrogatory — The  dej  onent  saith, 
that,  although  he  has  never  superintended  the  building  of 
what  are  called  merchant's  mills,  yet  he  has  worked  in 
such  as  a  millwright,  and  he  did  so  in  the  mills  of  the  rc- 


I  10 


spondents,  and  of  Hollman  and  Van  Cortlandl,  but  he  does 
not  profess  to  have  much  knowledge  of  the  costs  of  build- 
ing nulls  on  a  large  scale,  though  he  thinks  himself  capa- 
ble of  forming  an  estimate  of  them,  from  the  knowledge  he 
possesses  of  the  costs  and  expense  of  other  mills,  they  be- 
ing, partly,  much  the  same  in  point  of  workmanship,  though 
on  a  different  scale. 

To  the  seventh  cross  interrogatory — The  deponent  saith, 
that  he  has  never  built  a  dam  similar  to  the  one  in  ques- 
tion in  this  cause,  but  that  be  has  built  dams  that  were 
more  expensive,  and  more  difficult  to  build,  from  which 
he  has  acquired  some  experience  respecting  the  costs  of 
such  work  ;  and  that  he  has  paid  bills  of  the  expense  of 
such  dams,  viz.  one  for  the  Furnace  creek,  in  Cortlandt- 
town  ;  one  for  Joseph  Tomkins,  on  a  stream  running  into 
the  Croton  ;  and  two  for  the  Doughtys,  in  Dutchess  county. 

To  the  eighth  cross  interrogatory — The  deponent  saith, 
that  he  knows  the  dimensions  of  the  dam,  raceway  and 
flue,  as  inquired  of  in  said  interrogatory,  and  that  he  as- 
certained the  same  by  actual  measurement  with  a  chain 
and  pole.  A  considerable  part  of  said  dam  consists  of 
large  stones  and  rocks,  many  of  which  have  never  been 
moved,  and  cannot  be  moved,  without  blasting,  and  most 
of  the  logs,  composing  the  dam,  are  braced  in  by  the  said 
rocks,  king  in  their  natural  places. 

Te-timonyof     Walter  Fowler  testifies  as  follows,  viz. 

waiter  >ow  ^  ^e  first  interrogatory — The  deponent  is  a  miller  and 
millwright,  residing  at  Croton,  and  is  employed  in  the 
mills  in  question,  and  has  been  employed  in  said  mills  for 
about  seventeen  years  ;  that  is  to  say,  ever  since  the  same 
were  first  erected,  excepting  four  years,  namely,  the  se- 
cond, third,  fourth,  and  fifth  years. 

To  the  fourth  interrogatory — The  deponent  saith,  that 
he,  together  with  Samuel  Mott,  and  Nathan  Anderson, 
previous  to  the  appointment  of  David  Lydig  as  an  ap- 
praiser, took  a  superficial  view  of  the  mills  and  premises  in 


Ill 


question  ;  the  deponent  accompanied  the  said  Mott  and 
Anderson,  when  they  took  the  said  view  of  the  mills  of  the 
respondents,  but  not  when  they  went  to  view  the  other 
mill,  belonging  to  General  Van  Cortlandt ;  in  the  depo- 
nent's opinion,  the  said  Mott  and  Anderson  did  not  examine 
the  said  mills  and  appurtenances  first  mentioned,  in  such 
a  manner  as  to  enable  them  to  form  a  just  and  correct  es- 
timate of  their  value  ;  he  does  not  know  in  what  manner 
they  examined  the  other  mill  ;  when  they  examined  the 
said  mills  of  the  respondents,  they  made  no  particular  in- 
quiries of  the  deponent,  as  to  the  condition  of  the  works 
and  machinery,  to  know  whether  or  not  they  were  sound, 
and  in  good  order  ;  the  deponent  considered  it  at  the  time 
as  amounting  to  a  very  slight  examination. 

To  the  seventh  interrogatory — The  deponent  saith,  that 
after  the  appointment  of  David  Lydig  as  one  of  the  ap- 
praisers, the  deponent  accompanied  the  three  appraisers  in 
question,  in  making  their  examination  of  the  said  mills,  ap- 
purtenances, and  premises :  the  deponent,  supposing  the 
said  appraisers  wished  to  see  the  mill-stones,  had  three  of 
them  turned  up  for  that  purpose  ;  but  they  did  not  appear 
to  take  much  notice  of  the  same,  nor  examine  them,  in  or- 
der to  ascertain  whether  they  were  burr  stones,  or  an  in- 
ferior kind,  and  thereupon  the  deponent  discontinued  ta- 
iling up  any  more  of  them  ;  the  works  were  set  in  motion 
in  order  that  they  might  see  them  in  operation,  and  when 
they  were  stopped  they  took  a  general  view  of  the  wheels 
and  machinery,  and  they  also  looked  into  the  cog-pit,  but 
he  does  not  recollect  that  they  went  into  the  same  ;  that 
they  then  went  under  the  mill,  at  least  Mott  and  Anderson 
did,  but  he  does  not  recollect  that  David  Lydig  went  there. 
The  deponent  does  not  remember  of  their  trying  or  in- 
specting any  of  the  timber  composing  the  frame  of  the 
mills,  or  shafts  of  the  machinery,  so  as  to  ascertain  their 
condition  and  state  of  repair,  nor  did  they  bore,  to  his 
knowledge,  any  of  the  timbers,  though  there  was  a  man  at- 


/ 


112 

tending,  with  an  augur,  for  that  purpose  ;  but  he  was  not 
desired  by  the  said  appraisers  to  make  use  of  the  same. 
To  the  best  of  the  deponent's  judgment,  the  said  appraiser* 
did  not  examine  the  said  mills  and  appurtenances,  in  a  man- 
ner sufficiently  particular  to  enable  them  to  form  a  just 
and  correct  estimate  of  their  value,  and  the  deponent  rer 
members  that  he  felt  surprised  at  the  time,  at  their  not  ask- < 
ing  him  more  questions,  and  making  stricter  inquiries  ast 
to  the  condition  of  said  mills,  machinery,  and  appurtenan-J 
ces,  as  it  must  have  been  well  known  to  Mott  and  Ander- 
son, that  the  deponent,  from  his  familiar  acquaintance 
with  the  same,  in  consequence  of  his  having  been  so  long 
employed  in  said  mills,  was  fully  competent  to  give  them 
the  most  accurate  and  minute  account  of  the  condition  of 
6aid  mills,  machinery,  and  appurtenances. 

To  the  fourteenth  interrogatory — The  deponent  saith,  ^ 
that,  as  he  has  before  mentioned,  he  is  and  has  been,  forfl 
many  years,  well  acquainted  with  the  mills  and  premises,  J1 
particularly  mentioned  and  alluded  to  in  said  interrogatory, 
and  that  for  the  reason;  before  mentioned,  he  has  been  for 
a  long  time  well  acquainted  with  the  particular  state  of  re- 
pair and  condition  of  the  same,  as  inquired  about  in  said 
interrogatory,  and  particularly  from  the  first  day  of  May, 
18 1 3.    The  deponent  does  not  think  that  there  was  any 
material  difference  in  the  condition  and  state  of  repair 
thereof,  on  the  22d  day  of  November,  in  the  said  year 
from  what  they  were  on  the  8th  day  of  July  preceding,  ex- 
cept that,  somewhere  about  the  beginning  of  November,  the 
main  cog-wheel,  while  the  said  mill  was  in  operation,  sud- 
denly gave  way,  and  broke  to  pieces,  from  natural  decay 
and  rottenness,  so  that  it  was  not  capable  of  repair,  and  it 
became  necessary  to  have  a  new  wheel  made,  and  put  in 
its  place  ;  and,  lastly,  the  deponent  saith,  that  he  thinks  the 
business  of  the  mills  in  question  has  decreased,  since  the  1st 
of  May,  1813.  but  not  in  any  considerable  degree. 


113 


To  the  eighteenth  interrogatory — The  deponent  saith, 
that  he  is  well  acquainted  with  the  mill  in  question,  occu" 
pied  by  Philip  Van  Cortlandt,  and  John  F.  Hollman,  but 
he  has  never  viewed  the  same  for  the  particular  purpose 
of  inspection  ;  he  is  of  opinion,  however,  that  it  is  more 
valuable  than  the  other  mill,  built  by  the  respondents.  It 
consists  of  five  floors,  besides  the  garret,  or  cockloft,  and 
has  five  run  of  stones,  while  the  other  mill  has  six  run  of 
stones,  and  four  floors  ;  that  is  to  say,  three  full  floors, 
and  one  over  that  part  of  the  mill  that  was  first  built,  but 
the  deponent  does  not  recollect  which  mill  is  of  the  great- 
est dimensions,  as  to  length  and  width,  but  he  is  pretty 
certain,  that  the  first  mentioned  mill  is  composed  of  sound- 
er timber,  and  is  a  stronger  building,  than  the  one  built  by 
the  respondents.  The  deponent  is  of  opinion,  that  the  first 
mentioned  mill  is  the  most  valuable  of  the  two,  being  in  a 
better  state  of  repair,  and  not  so  much  exposed  to  the  wet 
from  below,  and  the  drip  from  the  race,  as  the  other ;  and 
that  its  machinery  is  pretty  much  the  same  as  that  of  the 
respondent's  mill  ;  and  that,  as  far  as  the  deponent  can  re- 
collect, and  has  understood,  the  said  mill  of  Van  Cortlandt 
was  built  about  three  or  four  years  after  the  other  mill, 
though  he  was  not  there  at  the  time  ;  and  the  same  has  the 
appearance  of  being  a  newer  mill,  and  better  built. 

To  the  nineteenth  interrogatory — The  deponent  saith, 
that,  as  he  has  before  mentioned,  he  is  well  acquainted  with 
the  mills  and  premises  in  question,  and  was  employed  by  the 
respondents,  the  first  year  they  were  building ;  and  after 
the  same  got  into  full  operation,  the  deponent  left  their 
said  employ,  and  was  absent  about  four  years,  when  he  re- 
turned, and  again  entered  into  their  employ,  in  which  he 
continued,  as  the  miller,  until  the  expiration  of  the  lease  ; 
and  from  that  time  to  the  present,  he  has  continued  there- 
in in  the  same  capacity.  The  deponent  was  there,  as  he 
has  before  mentioned,  at  the  time  the  respondents  ceased 

to  use  the  same,  and  that,  at  the  last  mentioned  time,  se- 

15 


114 


veral  parts  of  said  mill  were  in  a  decayed  state  ;  that  is  to 
say,  some  of  the  frame  of  the  building  was  a  good  deal  de- 
cayed ;  the  roof  was  leaky,  some  of  the  main  posts  were 
rotten,  and  also  several  of  the  girts,  or  girds,  were  decay- 
ed, which  was  also  the  case  wilh  almost  all  the  sills,  and 
some  of  the  sleepers  ;  some  of  the  stone  foundation  was  so 
much  out  of  repair,  that  he  does  not  think  it  would  have 
been  sufficient  for  erecting  a  new  mill,  though  other  parts 
were,  and  still  are,  good  ;  as  to  the  machinery  and  running 
geer,  it  was  a  good  deal  worn,  and,  as  the  deponent  has  be- 
fore mentioned,  one  of  the  two  main  cog-wheels  gave  way, 
and  in  the  spring  following,  the  deponent  found  it  neces- 
sary to  have  a  new  shaft  made  for  one  of  the  water-wheels, 
on  account  of  the  rottenness  of  the  old  one  ;  at  the  time 
when  the  appraisement  took  place,  the  mill-stones  were  in 
good  order,  excepting  one,  which  was  a  little  deficient ; 
most  of  the  bolts  were  in  a  decayed  state,  and  a  good  deal 
patched.  Between  the  first  of  May,  1813,  and  July  fol- 
lowing, the  respondents  made  some  repairs  on  the  said 
mills,  such  as  putting  in  a  few  new  cogs,  and  something 
over  some  parts  of  the  mill,  by  covering  over  certain  de- 
cayed parts  thereof  with  boards  and  shingles,  where  it  had 
leaked  ;  and  the  floor  on  which  the  water  had  leaked,  was 
strewn  over  with  meal  and  bran,  by  the  aforesaid  Abraham 
I.  Underbill,  but  whether  for  the  particular  purpose  of 
hiding  the  marks  on  the  floor  or  not,  the  deponent  does 
not  know ;  and  this  was  done  just  before  the  appraisers 
came,  in  consequence  of  which  its  appearance  was  made 
better.  The  principal  part  of  the  machinery  aforesaid,  had 
been  used  for  said  mills,  during  the  whole  time  the  depo- 
nent had  been  employed  therein,  such  as  the  elevator 
straps,  all  the  mill-stones,  except  one  run,  which  had  beer 
set  up  about  fourteen  years  before,  and  all  the  bolting 
cloths  were  the  same  that  were  originally  put  in,  and  he  ig 
certain  that  there  were  no  new  ones,  except  those  for  bolt- 


115 


ing  what  is  called  ship-stuff,  which  requires  a  coarse  kind 
of  cloth. 

To  the  twenty-first  interrogatory — The  deponent  saith. 
that  as  he  has  before  mentioned,  he  has  been  employed  in 
the  mills  in  question,  from  the  first  of  May,  1813,  down  to 
the  present  time,  excepting  the  time  when  the  said  mill 
was  not  in  operation,  on  account  of  the  respondents  not 
giving  up  possession  thereof,  which  was  some  time  in  Au- 
gust ;  he  has  already  mentioned  the  repairs  that  were  made 
to  the  mill  and  machinery,  and  that,  as  to  the  raceway, 
some  repairs  were  found  necessary,  as  it  was  and  still  is  a 
good  deal  out  of  order. 

To  the  twenty-second  interrogatory — The  deponent 
saith,  that  the  dam  and  raceway  in  question,  at  the  time 
the  respondents  quit  possession,  were  very  much  out  of 
repair,  and  that  the  dam  is  now  so  much  out  of  order,  that  it 
must  be  planked  all  the  way  across,  and  a  considerable 
part  of  the  raceway,  which  was  out  of  repair  at  the  time 
aforesaid,  is  still  in  the  same  bad  condition  ;  the  dam  and 
raceway  aforesaid,  excepting  the  stones  composing  a  part 
of  it,  were  not  of  a  permanent  nature,  and,  indeed,  he  does 
not  think  that  any  part  of  it  was  so  substantial  as  to  be 
called  permanent.  The  respondents,  however,  occasion- 
ally repaired  the  same,  in  such  parts  as  had  decayed,  and 
the  dam  has  also  undergone  considerable  repair,  since  the 
respondents  quit  possession. 

To  the  twenty-third  interrogatory — The  deponent  saith, 
that  there  was  a  mill  on  the  premises  in  question,  at  the 
time  the  respondents  took  possession  thereof,  under  their 
lease  from  the  Van  Cortlandts,  and  there  was  also  a  dam 
and  raceway  conducting  water  to  said  mill,  and  there  was 
also,  at  the  same  time,  the  remains  of  another  mill,  at  and 
near  the  said  place  ;  the  two  mills  last  mentioned  were  on 
the  west  side  of  the  Croton  river,  and  the  mill  of  the  re- 
spondents is  on  the  other  side  ;  that  the  mill  first  mention- 
ed was  in  operation  at  the  time  the  respondents  took  their 


116 


lease  as  aforesaid,  and  they  made  use  of  the  same,  to  the 
best  of  his  recollection,  until  their  new  mills  were  in  ope- 
ration, at  which  period  the  saw-mill  was  no  longer  used  aa 
such. 

CROSS  EXAMINED. 

To  the  eighth  cross  interrogator) — The  deponent  6aith, 
that  he  assisted  in  measuring  the  raceway  in  question,  and 
ascertained  the  same  to  be  thirty-two  rods  in  length  :  as  to 
the  dam,  it  is  in  some  places  about  three  feet  at  the  highest, 
and  at  others  not  more  than  from  three  to  two  feet,  but  it 
differs  in  width  in  different  places,  and  this  is  also  the  case 
with  the  raceway,  which  in  some  places  is  two,  three,  and 
four  feet  deep,  and  in  some  places  less,  and  the  same  is  the 
case  with  the  flue  :  and  that  he  knows  all  the  above  facts 
from  experience.  The  dam  is  partly  composed  of  large 
stones,  but  he  does  not  know  that  many  large  ones  were 
moved  from  their  natural  places  to  make  said  dam,  and  the 
deponent  remembers,  that  he  was  present  and  assisted  in 
building  the  same,  and  all  the  timber  and  materials  were 
procured  close  by  and  on  the  spot,  except  some  plank  for 
the  use  of  the  dam. 

To  the  ninth  cross  interrogatory — The  deponent  saith, 
that  as  he  has  before  mentioned,  he  was  employed  as  the 
miller  in  the  mills  in  question  :  to  the  best  of  his  recollec- 
tion, they  used  to  manufacture  on  an  average  from  sixty,  to 
one  hundred  barrels  of  flour  per  day,  for  one  week,  and  that 
in  one  instance,  when  a  very  great  exertion  was  made,  a 
greater  quantity  was  manufactured,  but  this  occurred  but 
once,  and  that  the  number  of  hands  employed  in  said  mills, 
were  four  men  and  a  boy,  but  that  sometimes  there  were 
more,  and  sometimes  less,  and  that  sometimes,  when  busi- 
ness was  dull,  there  were  only  two  or  three. 

W  iliiam  Fowler  testifies,  as  follows,  viz. 
of,evvm?»m     To  the  first  interrogatory — The  deponent  has  been  em- 


117 


ployed  as  a  miller,  in  the  mills  leased  by  his  father,  Walter 
Fowler,  at  Cortlandt-town.  He  has  never  been  employed 
in  superintending  the  building  of  mills,  but  has  been  em- 
ployed in  repairing  the  same. 

To  the  fourth  interrogatory — The  deponent  saith,  that 
when  Samuel  Mott  and  Nathan  Anderson  viewed  the  pre- 
mises in  question,  at  the  time  referred  to,  he  was  with  them 
all  the  while  they  were  at  the  mill,  the  deponent  being  at 
that  time  employed  in  the  business  of  the  mill ;  that  the 
said  persons  examined  the  mill,  but  it  did  not  appear  tfo 
him  that  they  took  a  particular  view  of  the  same,  or  such 
a  one  as  the  deponent  should  suppose  was  sufficient  to  en- 
able them  to  form  a  correct  estimate  of  its  value.  He  does 
not  recollect  of  their  going  under  the  mill  to  examine  the 
foundation,  and  he  is  certain  that  they  did  not  go  into  the 
cog-pit,  nor  examine  the  bolting  cloths  or  bolts. 

To  the  seventh  interrogatory — The  deponent  saith,  that 
when  the  aforesaid  Samuel  Mott  and  Anderson,  together 
with  David  Lydig,  afterwards  examined  the  mills  in  ques- 
tion, if  did  not  appear  to  the  deponent  that  they  were  as 
particular  as  at  the  previous  time,  when  Mott  and  Ander- 
son viewed  the  same  alone,  and  as  to  Mr.  Lydig,  the  depo- 
nent did  not  perceive  that  his  view  and  examination  of  the 
premises  was  as  particular  as  that  of  the  other  persons  :  the 
said  persons  walked  through  and  about  the  mill,  and  then 
went  and  viewed  the  raceway  and  dam,  but  they  did  not 
go  under  the  mill,  though  probably  they  might  have  looked 
at  the  foundation  from  the  outside :  he  does  not  recollect 
their  examining  any  of  the  timbers,  or  of  measuring  the 
mill,  though  he  recollects  that  Abraham  I.  Underhill  men- 
tioned to  them  the  dimensions  thereof;  the  deponent  is  of 
opinion  that  the  persons  aforesaid  did  not  examine  the  said 
mills  in  such  a  manner  as  to  enable  them  to  form  a  correct 
estimate  of  their  value.  The  deponent  was  also  present 
when  they  walked  up  the  raceway,  but  he  does  not  recol- 
lect their  measuring  the  same. 


J  1  o 


To  the  fourteenth  interrogatory — The  deponent  saith, 
that  he  has  been  acquainted  with  the  mills  in  question 
about  fifteen  or  sixteen  years,  and  that  he  assisted  in  tend- 
ing the  9ame  about  six  or  seven  years,  while  they  were  in 
the  possession  of  the  respondents,  and  that  he  has  continued 
in  them  till  the  present  time,  in  consequence  of  which  the 
deponent  has  had  opportunities  of  knowing  the  state  of  re- 
pair of  said  mills  and  machinery. 

The  deponent  knows  of  no  material  difference  in  the 
itate  of  the  repairs  aforesaid,  between  the  8th  of  July,  and 
the  22d  of  November,  in  the  year  1813,  than  what  might 
be  produced  by  the  natural  wear  and  tear  thereof.  The 
deponent  does  not  think,  that  the  mills  and  machinery, 
dam  and  raceway  aforesaid,  have  decreased  in  value  since 
the  first  of  May,  1813,  except  from  the  natural  decay,  or 
the  ordinary  wear  and  tear  thereof,  and  except  what  may 
be  owing  to  the  decrease  of  business,  on  account  of  changes 
in  the  state  of  the  times. 

To  the  nineteenth  interrogatory — The  deponent  saith, 
that,  as  he  has  before  mentioned,  he  was  employed  in  the 
aforesaid  mills  at  the  same  time  with  his  father,  Walter 
Fowler,  as  a  miller,  and  that  he  was  there  in  that  capacity 
at  the  time  the  respondents  quit  possession  in  April,  1813. 
A  short  time  before  the  expiration  of  the  lease,  the  respon- 
dents had  some  repairs  made  to  the  said  mills,  that  is  to 
say,  by  wedging  up,  and  endeavouring  to  raise  some  of  the 
floor  beams,  that  had  settled  in  the  year  1812,  putting  m  a 
part  of  a  new  sill,  and  repairing  some  of  the  cogs  ;  that 
the  above  mentioned  repairs  were  made  as  aforesaid,  after 
the  respondents  had  ceased  to  use  the  said  mills,  their 
lease  expiring  in  May,  1813,  but  they  had  stopped  grind- 
ing in  the  winter  of  1812,  and  did  not  put  the  mills  into 
operation  again  the  ensuing  season,  on  account  of  their 
lease  expiring  in  May.  The  said  repairs  had  the  effect  of 
making  the  mill  appear  to  better  advantage,  and  he  re- 
members that  some  decayed  parts  of  the  frame  thereof 


119 


were  covered  over  with  boards,  and  that  on  the  very  dar 
of  the  expiration  of  the  lease,  the  respondent,  Abraham  L 
Underhill,  drove  some  shingles  into  the  underside  of  the 
roof  of  that  part  of  the  mill  which  was  an  addition  to  the 
main  building,  it  having  rained  the  day  before,  and  the 
water  had  leaked  through  upon  the  floor ;  and  in  order  to 
hide  the  marks,  he,  the  said  Abraham  I.  Undevhill,  strewed 
meal  or  flour  over  the  same,  and  then  had  the  floor  swept ; 
that  the  said  Abraham,  also,  had  planks  laid  over  the  plate 
of  the  flue,  which  was  decayed,  and  which  had  never  been 
covered  before,  by  which  means  the  said  decayed  parts 
were  concealed  ;  this  was  done  only  one  or  two  days  be- 
fore the  expiration  of  the  lease,  and  when  he  went  away 
from  the  premises,  he  took  away  with  him  said  planks. 
The  deponent  remembers  of  his  taking  away  some  other 
planks  that  Mr.  Lee,  the  attorney  at  law,  had  advised  him 
not  to  take,  as  they  had  been  included  in  the  appraise- 
ment, but  he  nevertheless  took  away  the  same.  And, 
lastly,  the  deponent  saith,  that  the  whole  of  the  machinery 
in  said  mill,  at  the  expiration  of  the  lease,  had  been  used 
in  the  said  mill  during  the  whole  time  the  deponent  had 
been  employed  in  the  same,  though  it  had  been  occasion- 
ally repaired,  and  that  the  same  was  the  case  with  the 
running  geers. 

To  the  twenty-first  interrogatory — The  deponent  saith, 
that  he  has  been  employed  in  the  aforesaid  mills  since  the 
respondents  quit  the  possession,  and  until  the  present 
time,  and  that,  in  the  fall  of  the  year  1813,  while  the  said 
mill  was  in  the  employ  of  the  Van  Cortlandts,  one  of  the 
main  cog-wheels  gave  way  and  went  to  pieces,  from  natu- 
ral decay  and  rotteness,  and  it  became  necessary  to  make 
an  entire  new  one,  and  that,  in  the  year  1814,  it  became 
necessary  to  put  in  a  new  shaft  for  one  of  the  water- 
wheels,  the  same  having  decayed  ;  that  the  bolts  and  bolt- 
ing cloths  were  very  much  worn,  and  none  of  them  fit  for 
superfine  flour,  and  that  they  were  obliged  to  mend  them 


120 


almost  every  day.  In  the  summer  of  the  year  1815,  the 
dam  had  become  so  much  out  of  order  as  to  render  it  ne- 
cessary to  rebuild  nearly  one  third  of  it,  and  the  other 
parts  have  been  repaired  this  year,  and  that  the  raceway 
was  in  a  very  bad  condition  at  the  time  of  the  expiration 
of  the  lease,  but  he  does  not  recollect  of  any  very  parti- 
cular repairs  being  made  to  it,  though  it  is  very  necessary 
at  present  to  have  the  same  repaired,  as  it  is  much  out  of 
order. 

To  the  first  additional  interrogatory — The  deponent 
saith,  that,  as  he  has  already  mentioned  in  his  answer  to 
the  nineteenth  interrogatory,  certain  repairs  were  made 
in  the  said  mills  and  premises  by  the  respondents,  just  be- 
fore the  expiration  of  the  lease,  and  that  these  were  made 
before  the  aforesaid  Mott  and  Anderson  came  to  view  the. 
said  premises,  and  that  between  the  time  that  they  so 
viewed  the  same,  and  the  time  when  Mr.  Lydig  joined 
with  them  in  the  view  and  examination  thereof,  as  before 
mentioned,  there  were  two  persons  employed  by  the  re-  I 
spondents  for  about  a  fortnight,  in  doing  little  jobs  in  the 
way  of  repairs  in  and  about  said  mills,  all  which  were  calcu- 
lated to  make  the  same  appear  to  better  advantage. 

To  the  second  interrogatory — The  deponent  saith,  that 
between  the  time  of  viewing  the  said  premises,  by  Mott 
and  Anderson,  ar.d  the  time  when  they  viewed  them  to- /I 
gether  with  David  Lydig,  boards  were  nailed  up,  by  theJl 
direction  of  the  respondents,  against  the  cog-pit  in  the  in-  a 
side  of  the  mill,  so  as  to  prevent  persons  from  pas.-ing 
from  under  the  mill  into  the  body  of  the  mill  through  the 
said  cog-pit,  but  there  were  doors  inside  which  could  have 
been  opened,  so  as  to  admit  persons,  when  in  the  mill,  to 
go  into  the  cog-pit,  but  the  said  doors  were  not  opened 
by  the  said  appraisers,  though,  as  they  were  not  fastened, 
there  was  no  difficulty  in  opening  them,  but  Abraham  I. 
Underhill  told  the  deponent  that  the  cog-pit  was  fastened 


121 


up  in  the  way  above  mentioned,  in  order  to  prevent  the 
aforesaid  Van  Wyck  from  getting  into  the  mill. 

To  the  third  interrogatory — The  deponent  saith,  that 
he  has  already  mentioned,  in  his  answer  to  the  nineteenth 
interrogatory,  the  repairs  that  were  made  to  the  roof  of 
the  building  mentioned  in  said  interrogatory,  and  the  me- 
thod that  was  taken  to  conceal  the  marks  on  the  floor,  oc- 
casioned by  the  leaks,  and  that  the  same  was  done  before 
the  aforesaid  Mott  and  Anderson  came  to  view  the  pre- 
mises. 

Adonijah  Cock  testifies  as  follows,  viz. 

To  the  eleventh  interrogatory — The  deponent  saith,  J^™"^01 
that  he  has  viewed  and  examined  the  mills,  dam,  and  race- 
way, and  premises  mentioned  and  described  in  said  inter- 
rogatory, both  before,  and  subsequent  to  the  1st  day  of 
May,  1813,  he  having  been  in  the  habit  of  working 
as  a  millwright  in  and  about  said  mills  and  premises,  for 
eighteen  years,  by  which  means  he  has  been  in  the'habit 
of  seeing  and  examining  the  same,  from  time  to  time,  du- 
ring the  period  aforesaid. 

To  the  fourteenth  interrogatory — The  deponent  saith, 
that  he  is  acquainted  with  the  said  mills  and  premises,  and 
has  been,  during  the  time  before  mentioned,  acquainted 
with  the  particular  state  of  repair  and  condition  of  said 
mills  and  their  machinery,  and  the  dam  and  raceway  in 
question,  and  that  this  has  been  the  case,  also,  since  the 
1st  of  May,  1813.  The  deponent,  in  the  fall  of  the  year 
1813,  was  called  upon,  as  a  millwright,  to  make  a  new 
main  cog-wheel  for  said  mill,  in  consequence  of  the  break- 
ing to  pieces  of  the  old  one  through  natural  decay  ;  and 
that  it  was  in  the  month  of  November,  in  the  said  year, 
that  he  made  a  new  cog-wheel  in  place  of  the  one  so  bro- 
ken, but  which  was  not  finished  by  the  twenty-second  of 
said  month.  The  deponent  does  not  recollect  that  there 
was  any  other  difference  in  the  condition  of  said  mills,  be- 

16 


122 


tween  the  periods  of  time  inquired  about.  In  the  said 
month  of  July,  [July,  1813,]  said  cog-wheel  was  not  bro- 
ken, though  it  must  have  been  very  rotten ;  and,  lastly, 
the  deponent  does  not  know  that  the  mills  and  premises 
in  question,  have  decreased  in  value  since  the  1st  of  May, 
1813,  except  from  the  natural  decay,  and  the  ordinary 
wear  and  tear  thereof. 

To  the  nineteenth  interrogatory — The  deponent  6ailh, 
that  he  has  been  employed  as  a  millwright,  in  the  mills  in 
question,  for  eighteen  years,  to  the  present  time.  He  was 
originally  employed  as  such  by  the  respondents,  and  con- 
tinued in  that  capacity  until  they  quit  the  possession  ;  and 
the  last  work  he  did  for  them,  as  such,  was  in  April,  1813. 
At  the  time  the  respondents  quit  the  possession,  the  works 
and  machinery  of  said  mill,  though  capable  of  doing  con- 
siderable work,  with  some  attention  to  repairs,  yet  had  be- 
come old  and  weak,  and  having  been  but  slightly  made 
originally,  they  were  often  giving  way,  and  getting  out  of 
order.  The  deponent,  however,  does  not  recollect  of 
making  any  other  particular  repairs  to  the  said  mill  and 
machinery,  during  the  year  1813,  than  what  he  has  before 
mentioned.  The  deponent,  however,  remembers  that,  in 
April,  in  the  year  aforesaid,  he  made  some  repairs  in  the 
frame  and  building  of  said  mills,  by  the  direction  of  the 
respondents,  that  is  to  say,  he  took  up  some  of  the  flooring, 
and,  after  wedging  up  the  beams,  and  sawing  off  the  lower 
ends  of  some  of  the  posts,  and  putting  pieces  of  new  sills 
underneath,  the  flooring  was  laid  down  again,  and  the 
building,  in  consequence  thereof,  made  a  much  better  ap- 
pearance than  before.  There  were,  also,  some  new  wea- 
ther boards  put  on,  but  he  does  not  recollect  of  any  shin- 
gles being  used,  as  inquired  about  in  said  interrogatory, 
though  the  roof  of  the  additional  building  was  very  leaky; 
and,  at  the  time  last  mentioned,  he  also  made,  and  put  in. 
a  new  shaft  for  a  small  cog-wheel. 

To  the  twenty-first  interrogatory    The  deponent  saith, 


123 


that,  as  he  has  before  mentioned,  he  was  employed  in  the 
mills  in  question,  in  the  manner  before  mentioned,  during 
the  year  1813  ;  and  that,  as  to  repairs  in  the  raceway,  he 
does  not  remember  repairing  the  same  by  putting  in  any 
new  timbers,  but  that  he  propped  up  and  braced  several 
of  them,  at  or  about  the  time  referred  to  in  said  interro- 
gatory ;  and  that  the  wooden  part  of  said  raceway  was 
very  rotten  and  a  good  deal  out  of  order. 

To  the  last  interrogatory — The  deponent  saith,  that 
when  the  mill  in  question  was  first  built,  it  was  made  with 
horizontal  water-wheels,  in  consequence  of  which  the 
lower  parts  of  the  building  were  made  damp,  and  a  muggy 
steam  was  created,  which  affected  the  timbers  above,  and 
rotted  them  ;  and  that  such  was  the  effect  on  the  frame  of 
said  mill,  until  an  alteration  took  place,  about  fourteen 
years  ago,  when  the  deponent,  as  the  millwright,  changed 
the  same  to  an  overshot  wheel,  the  shaft  of  which  is  still 
remaining  and  in  use.  In  the  month  of  March  last,  Walter 
Fowler,  the  miller  employed  in  said  mill,  and  the  depo- 
nent, as  the  millwright,  while  they  were  fixiug  and  putting 
the  works  in  order  for  grinding,  at  the  proper  season,  were 
of  opinion  that  the  frame  of  the  mill  would  not  be  worth 
the  putting  in  a  new  set  of  works  and  machinery,  and  it  is 
pretty  evident  that  the  said  works  and  machinery  cannot 
last  much  longer,  being  old  and  much  the  worse  for  wear, 
so  that  a  miller,  not  well  acquainted  with  it,  would  find  it 
difficult  to  keep  the  same  a  going. 

John  F.  Hollman  testifies  as  follows,  viz. 

To  the  first  and  second  interrogatories — The  deponent  of 
is  a  miller  residing  at  Cortlandt-town,  in  the  county  ofHl 
West  Chester,  but  has  never  been  employed  in  building, 
or  superintending  the  building  of  mills. 

To  the  seventh  interrogatory — The  deponent  saith,  that 
he  was  not  present  on  the  first  day,  when  the  appraisers 
in  question  came  to  view  the  mills  and  premises  mention- 


124 


ed  in  said  interrogatory  5  but  that,  on  the  next  morning, 
he  was  in  the  mill  of  the  respondents,  when  the  said  ap- 
praisers came  there  ;  and  that  the  said  appraisers  went 
through  said  mills,  and  looked  at  one  or  two  of  the  mill- 
stones that  were  taken  up,  and  at  the  machinery  in  gene- 
ral, but  they  did  not  go  into  the  cogpit,  nor  does  he  recol- 
lect of  their  going  under  the  mill  to  look  at  the  foundation, 
though  they  may  have  done  so  the  afternoon  before,  when 
they  began  the  examination,  and  when  the  deponent  was 
absent.  None  of  the  timbers  of  the  frame  were  bored, 
though  there  was  a  carpenter  present  with  an  auger  for 
that  purpose,  but  he  was  not  required  to  use  the  same. 
The  deponent  was  of  opinion,  at  the  time,  that  the  said 
appraisers  did  not  take  such  a  view  of  the  premises  as  was 
sufficient  to  enable  them  to  form  a  just  and  correct  esti- 
mate of  their  value,  though  he  does  not  know  how  far 
they  carried  their  examination  the  afternoon  before. 

To  the  twelfth  interrogatory — The  deponent  saith,  that 
he  is  acquainted  with  Robert  M-Queen  and  Scudder  Wa- 
ring, mentioned  in  >aid  interrogatory,  but  that  he  is  only 
slightly  acquainted  with  Justus  Thorn.  The  deponent  is 
of  opinion,  that  said  Robert  M'Queen  is  fully  competent, 
from  his  occupation  and  business,  to  form  a  true'and  cor- 
rect estimate  of  mills  and  their  appurtenances,  and  he 
also  thinks,  that  the  said  Waring  is  also  a  good  judge  there- 
of, but  that  he  is  not  acquainted  with  the  talents  of  Mr. 
Thorn.  The  standing  of  the  said  Robert  M'Queen  in  so- 
ciety, as  a  man  of  integrity  and  experience,  relating  to  his 
business  and  profession,  is  high,  and  the  deponent  has  al- 
ways heard  him  well  spoken  of  in  that  respect,  and  that  he 
has  never  heard  any  thing  against  his  character;  and  that 
Waring,  also,  bears  a  good  character,  and  is  considered  a 
very  good  workman  in  the  millwright  business. 

To  the  thirteenth  interrogatory — The  deponent  is  only 
very  slightly  acquainted  with  Samuel  Mott  and  David  Ly- 
digj  and  knows  the  said  persons  only  as  flour  merchants, 


125 

and,  although  he  believes  they  both  own,  or  owned 
mills,  yet  he  considers  them  less  competent  than  the  said 
MQueen  and  Waring,  to  form  a  true  and  correct  estimate 
of  the  value  of  mills  and  their  appurter.ances. 

To  the  nineteenth  interrogator) — The  deponent  saith, 
that,  as  he  has  before  mentioned,  he  is  well  acquainted 
wilh  the  mills  and  premises  in  question,  but  that  he  never 
was  employed  therein  ;  that  the  state  and  condition  of  the 
mills  and  premises  was  as  follows,  viz. :  the  machinery 
;inigbt  be  justly  considered  as  half  worn  out,  some  parts  of 
the  frame  were  decayed,  and  the  roof  of  the  part  called 
the  addition,  was  very  leaky  ;  the  dam  and  raceway  were, 
also,  in  some  degree,  out  of  repair.  The  deponent  re- 
members, that  after  the  respondents  quit  possession,  a  new 
main  cog-wheel  was  put  in,  in  place  of  the  old  one,  that  had 
become  rotten,  and  was  broke.  The  deponent  recollects, 
that  the  respondents  made  some  repairs  to  the  said  mills 
shortly  before  the  appraisers  came  to  view  the  same,  such 
as  putting  in  a  part  of  a  new  sill  on  the  east  side  of  the 
building,  and  raising  up  some  of  the  floor  beams  that  had 
settled,  and  also  repairing  the  flue  and  things  about  the  wa- 
ter-wheels, and  putting  in  some  cogs  in  the  machinery 
heads. 

To  the  twenty-second  interrogatory — The  deponent 
saith,  that  he  has  paid  particular  attention  to  the  dam  in 
question,  for  six  or  seven  years  last  past,  on  account  of  its 
being  the  common  dam  for  the  mills  in  question,  and  for 
those  occupied  by  the  deponent  and  Philip  Van  Cortlandt; 
I  that  the  said  dam,  consisting  in  part  of  logs  and  plank,  could 
not  be  considered  as  permanent,  and  was  liable  to  get  out 
:  of  order,  by  means  of  the  ice  and  natural  decay,  and  when 
!  the  gravel  washed  away,  as  was  often  the  case,  it  used  to 
H  cost  a  good  deal,  in  the  way  of  repairs  ;  and  that  the  race- 
way has  also  occasionally  required  repairs. 
|  .  To  the  eighteenth  interrogatory — The  deponent  saith, 
that  he  is  well  acquainted  with  the  mills  mentioned  in  said 


12(i 


interrogatory,  and  which  is  occupied  by  the  deponent  and 
Philip  Van  Cortlandt.  The  deponent  has  compared  the 
machinery  of  said  mill  with  that  of  the  other,  formerly  oc- 
cupied by  the  respondents,  but  he  has  never  taken  meant 
to  ascertain,  exactly,  the  size  and  dimensions  of  the  last 
mentioned  mill.  The  machinery  of  the  first  mentioned 
mill  is  more  simple,  and  better  calculated  to  do  business 
to  advantage,  than  the  other,  and  is  in  a  better  state  of  re- 
pair. The  first  mentioned  mill  has  six  floors,  and  the  other 
only  four,  and  what  may  be  called  a  half  floor;  the  timber 
of  the  frame  is  perfectly  sound,  while  that  of  the  other  is 
a  good  deal  decayed.  The  first  mentioned  mill  is  also 
greater  in  dimensions,  as  it  relates  to  storage,  there  being 
more  floors,  though  the  other  mill  is  broader  and  longer, 
but  has  not  so  many  floors.  The  deponent  is  of  opinion 
that  the  mill  aforesaid,  occupied  by  him  and  Mr.  Van 
Cortlandt,  is  twice  as  valuable  as  the  other  aforesaid  mill, 
but  that  he  does  not  know  the  particular  year  when  the 
first  mentioned  mill  was  built. 

CROSS  EXAMINED. 

To  the  fifth  cross  interrogatory — The  deponent  saith,  that 
although  he  has  never  been  employed  in  building  mills,  yet 
that,  as  one  of  the  owners  of  the  mills,  in  which  he  is  jointly 
concerned  with  Mr.  Van  Cortlandt,  he  has  been  engaged 
in  repairing  said  mills,  from  time  to  time,  or  rather  in  su- 
perintending the  mill-wright,  by  which  means  he  has  ac- 
quired some  knowledge  on  the  subject,  and  sufficient  to 
enable  him  to  judge  of  good  work. 

To  the  sixth  cross  interrogatory — The  deponent  saith,' 
that  the  mill,  occupied  by  him  as  aforesaid,  is  one  of  the 
description  enquired  about  in  said  interrogatory  [merchant 
mills.]  That  he  has  no  particular  knowledge  of  the  cost  of 
building  such  mills,  from  actual  experience,  but  he  knows 
that  mills,  for  manufacturing  purposes,  may  be  built  at 
much  less  expense  than  some  other  mills  of  that  kind. 


127 

which,  though  more  expensive,  are  not  capable  of  perform- 
ng  more  work. 

To  the  seventh  cross  interrogatory — The  deponent  saith, 
that  he  is  not  much  acquainted  with  the  expense  of  building 
dams  and  raceways,  but  he  has  been  engaged  in  having 
them  repaired,  and  has  paid  the  bills  of  expense  ;  and  that 
this  took  place  with  the  dam  and  raceway  belonging  to  the 
mill  occupied  by  him  and  Mr.  Van  Cortlandt,  and  that  the 
expense  of  repairing  the  dam  was  in  common  between 
them  and  the  respondents,  as  both  the  said  mills  were  sup- 
plied with  water  by  means  of  the  said  dam. 

Joseph  Tompkins  testifies  as  follows,  viz.  ofTe8j™e£I 
To  the  first  interrogatory — The  deponent  is  a  miller,  TocnPki'19 
and  resides  in  York-town,  in  the  county  of  West-Chester, 
and  has  built  and  superintended  the  building  of  two  grist- 
mills belonging  to  himself,  on  the  Croton  river,  but  he  is 
not  a  mill-wright. 

To  the  eleventh  interrogatory — The  deponent  saith,  that 
since  the  month  of  May,  1813,  he  has  seen  and  viewed  the 
mills,  dam,  raceway,  and  premises,  mentioned  and  des- 
cribed in  said  interrogatory,  but  he  did  not  take  such  par- 
ticular notice  of  the  machinery,  as  to  judge  of  its  condition ; 
that  he  took  the  dimensions  of  the  dam  and  raceway,  the 
last  time  he  viewed  the  same,  which  was  in  this  present 
month  of  June,  [June,  1816,]  though  he  had  seen  and 
viewed  the  premises  frequently  before  that  time.  The  de- 
ponent having  dug  a  raceway  for  his  own  mills,  which  was 
as  long,  though  not  as  wide,  as  the  respondent's,  he  con- 
ceived himself,  in  some  measure,  competent  to  form  an  es- 
timate of  what  the  raceway  and  dam  in  question  must  have 
cost,  and  according  to  the  best  of  his  judgment,  the  same 
could  not  have  cost  more  than  about  fifteen  hundred  dol- 
lars ;  the  race  and  dam  of  the  deponeut  having  cost  no  more 
than  six  hundred  dollars. 


128 

To  the  twelfth  interrogatory — The  deponent  saith,  that 
he  is  acquainted  with  Robert  M'Queen,  Scudder  Waring 
and  Justus  Thorn  ;  the  first  of  whom  made  certain  parts 
of  the  machinery  for  the  deponents  mills,  before  mention- 
ed, and  the  two  others  were  employed  by  the  deponent,  as 
the  mill-wrights.  The  said  persons  are  men  of  experience! 
in  their  occupation  and  professions,  as  aforesaid,  and  hei 
considers  them  fully  competent  to  form  a  true  and  correct; 
judgment  and  estimate  of  the  value  of  mills  and  their  ap- 
purtenances. The  said  persons  are  generally  reputed  to 
be  men  of  veracity  and  integrity,  and  as  entitled  to  the 
fullest  confidence  in  matters  relating  to  their  said  respec- 
tive professions  and  callings ;  and  the  said  Justus  Thorn 
has,  to  the  deponent's  knowledge,  been  several  times  em- 
ployed, by  different  people,  to  appraise  and  value  mills. 

To  the  sixteenth  interrogatory — The  deponent  saith, 
that  as  he  has  before  mentioned,  he  viewed  and  measured 
the  dam  and  raceway,  mentioned  and  inquired  about  in 
said  interrogatory,  and  that  from  the  experience  which  he 
has  had  in  the  business  of  making  a  dam  and  raceway  on 
the  same  river,  and  through  and  upon  pretty  much  the 
same  kind  of  ground  and  surface,  he  is  of  opinion,  that,  if 
the  premises  in  question  were  in  a  state  of  nature,  and  as 
they  were,  before  the  respondents  took  their  lease,  that  a 
dam  and  raceway  might  be  made,  in  the  same  place,  where 
the  respondents  made  theirs,  and  of  the  same  kind  and  di- 
mensions, for  about  the  sum  of  fifteen  hundred  dollars. 

Daniel  W.  Birdsall  testifies  as  follows,  viz. 

Testimony 

or  Daniel  w-     To  the  first  interroeratorv — The  deponent  owns  a  grist- 

Birdflll.  &         J  r  & 

mill,  and  has  carried  on  the  milling  business,  since  about 
the  year  1803,  in  grinding  for  the  country. 

To  the  twelfth  interrogatory — The  deponent  is  well  ac- 
quainted with  Scudder  Waring  and  Justus  Thorn  ;  the  said 
persons  are  mill-wrights,  and  the  said  Thorn,  in  particular, 
has  a  high  reputation,  as  a  mill-wright,  and  the  said  Wa- 


129 


rine  is  also  considered  skilful  and  experienced  in  his  said 
profession  ;  and  the  deponent  is  fully  of  opinion,  that  the 
said  Waring  and  Thorn  are  competent,  from  their  occupa- 
tion, profession  and  husiness  as  mill-vvrights,  to  form  a  true 
and  correct  estimate  of  mills  and  their  appurtenances  ;  that 
the  said  persons  bear  good  characters,  and  he  has  never 
heard  any  thing  against  their  integrity  or  talents. 

James  Diven  testifies  as  follows,  viz. 

To  the  twelfth  interrogatory— The  deponent  saith,  that  orT££i'fiZ 
he  knows  Robert  M'Queen,  Scudder  Waring,  and  Justus  yea' 
Thorn  ;  his  knowledge,  however,  of  the  latter  is  better  than 
of  either  of  the  others,  and  he  is  reputed,  in  the  deponent's 
neighbourhood,  to  be  the  best  mill-wright  and  mill-builder 
in  that  part  of  the  country ;  and  the  deponent  conaiders 
him  fully  competent,  from  his  long  and  great  experience 
in  the  business  before  mentioned,  to  form  a  true  and  cor- 
rect estimate  of  mills  and  their  appurtenances.  The  said 
Thorn  has  been  employed,  in  the  business  of  a  mill-wright, 
and  in  building  mills,  for  nearly  twenty  years  past,  in  dif- 
ferent parts  of  the  country,  up  the  North-river,  and  parti- 
cularly in  Dutchess  county  ;  and  he  is  one  of  the  most  ac- 
tive mill-wrights  the  deponent  knows  of.  The  deponent 
does  not  know  much  of  the  experience  and  skill  of  Scud- 
der Waring,  though  he  has  often  heard  him  spoken  of,  as  a 
mill-wright,  and  he  is  a  man  of  a  good  character  ;  with  res- 
pect to  Mr.  M'Queen,  the  deponent  has  known  him,  as  a 
mechanic,  and  that  he  made  castings  for  mills,  and  other 
machinery,  but  the  deponent  does  not  know  what  are  his 
talents  as  a  mill-wright.  The  said  Justus  Thorn  bears  a 
good  character,  and  is  considered  a  man  of  integrity  and 
fair  dealing  ;  and  Waring  and  M'Queen  are,  in  like  manner, 
men  of  good  reputation. 

To  the  thirteenth  interrogatory — The  deponent  saith, 
that  he  knows  one  Samuel  Mott,  who  used  to  have  mills  at 
New  Rochelle,  but  he  does  not  know  he  is  the  one  alluded 

17 


130 


to  in  *aid  interrogatory  ;  nor  does  he  know  his  competen- 
cy, as  an  appraiser  -^f  mills ;  the  deponent  has  known  Da- 
vid Lydig  many  years,  as  a  flour  merchant  and  owner  of 
mills,  and  that  lie  has  had  a  vast  deal  of  work  done  in  that 
way  ;  and,  although  he  must  certainly  know  what  are  the 
cost  and  expenses  incurred  in  building  mills,  yet  the  depo- 
nent thinks  that  Justus  Thorn  is  as  good,  if  not  a  better 
judge,  of  what  the  work  ought  to  cost ;  and,  in  the  depo- 
nent's opinion,  the  said  Thorn,  from  the  nature  of  his  oc- 
cupation and  business  as  aforesaid,  is  a  more  competent 
judge,  of  the  value  of  mills  and  their  appurtenances,  than 
the  said  David  Lydig ;  but  that  he  does  not  know  that  this 
is  the  case  with  the  two  other  persons,  namely,  M'Queen 
and  Waring. 

Jacob  Doughty  testifies  as  follows,  viz. 
r    To  the  first  interrogatory — The  deponent  is  a  farmer, 
and  owns  a  mill. 

To  the  twelfth  interrogatory — The  deponent  saith,  that 
he  knows  Robert  M'Qneen  merely  by  sight,  but  that  he  is 
better  acquainted  with  Justus  Thorn,  and  still  more  so  with 
Scudder  Waring  ;  that  he  has  known  the  said  Waring  about 
four  years ;  and  that,  in  the  year  1814,  to  the  best  of  his 
recollection,  as  to  the  time  he  was  employed,  together  with 
the  said  Justus  Thorn,  by  the  deponent  and  his  brother,  to 
build  a  mill  for  them  in  Beekmantown,  and  they,  accord- 
ingly, built  and  finished  the  same.  The  said  mill  consist- 
ed of  two  run  of  stones,  hut  had  not  as  much  machinery  as 
is  sometimes  put  in  larger  mills  ;  and  that  they  completed 
the  work  to  the  satisfaction  of  the  deponent  and  brother. 
The  said  Justus  Thorn,  as  the  deponent  understood,  built 
mills  for  Governor  Lewis,  and  he  has  heard  of  the  said 
Waring's  being  employed  in  building  mills  in  other  places  ; 
the  deponent,  from  his  knowledge  of  the  skill  and  experi- 
ence of  the  said  Waring  and  Thorn,  from  the  circumstan- 
ces before  mentioned,  is  of  opinion  that  they  are  fully 


J31 


competent,  from  their  occupation  and  experience,  to  form 
a  true  and  correct  estimate  of  mills  and  their  appurtenan- 
ces ;  and.  as  to  their  characters,  he  believes  them  to  be 
men  of  honesty  and  good  faith,  and  he  has  never  heard 
any  thing  to  the  contrary  ;  and,  lastly,  the  deponent  ^aith, 
that,  when  he  and  his  brother  were  about  building  the 
aforesaid  mills,  they  made  inquiries  of  their  friends,  as  to 
the  best  men  to  engage  in  that  undertaking,  and  the  said 
Waring  and  Thorn  were  recommended  to  them  as  such, 
and  were  spoken  of  as  fully  competent  to  the  business. 

Stephen  N.  Bayard  testifies  as  follows,  viz.  Testimonvnf 

r  J  _  Btephi  o  M 

To  the  first  interrogatory — The  deponent  saith,  that  he  B<">ard 
is  employed  in  the  milling  business,  together  with  his  part- 
ner, W.  Mynderse,  at  the  Seneca  Falls  ;  and  the  deponent, 
together  with  said  partner,  built  and  superintended  the 
building  of  said  mills  ;  that  is  to  say,  his  partner  superin- 
tended them,  at  the  place  aforesaid,  and  the  deponent  at- 
tended to  the  procuring  of  materials  necessary  for  the 
same,  that  were  to  be  obtained  in  this  city,  and  he  also 
engaged  Robert  M'Queen  to  furnish  a  plan  for  said  mills, 
and  he,  the  said  M'Queen,  went  there  accordingly,  and  at- 
tended to  the  work,  or  rather  to  give  directions  to  a  Mr. 
Grove,  a  mill-wright,  employed  by  M'Queen  to  execute 
the  work. 

To  the  twelfth  interrogatory — The  deponent  saith,  that 
he  is  acquainted  with  Robert  M'Queen,  he  having  been 
employed  by  the  deponent  and  partner,  as  before  men- 
tioned, to  build  mills  for  them,  that  is  to  say,  two  grist- 
mills, at  Seneca  Falls  ;  and  the  deponent,  from  this  know- 
ledge of  the  skill,  experience,  and  judgment  of  the  said 
Robert  M'Queen,  considers  him  fully  competent,  from  his 
occupation,  profession,  and  business,  as  aforesaid,  to  form  a 
true  and  coirect  estimate  of  mills  and  their  appurtenances  ; 
and  the  deponent  has  always  regarded  the  said  M'Queen. 
and  heard  him  spoken  of  by  others,  as  a  man  of  unexcep- 


132 


tionable  character,  as  to  probity  and  good  faith  ;  and  he  is1 
generally  esteemed  as  a  man  of  talents  in  his  business, 
and  as  one  of  the  most  able  mill-wrights  in  this  state. 

Sjronpkiu?    George  Tompkins  testifies  as  follows,  viz. 

To  the  first  interrogatory — The  deponent  is  a  mill- 
wright, and  resides  at  Paulus  Hook,  and  h  §  been  employ- 
ed in  (he  building  and  superintending  the  building  of 
mill1?,  for  about  thirty-two  years. 

To  the  twelfth  interrogatory — The  deponent  6aith,  that 
he  is  acquainted  with  Robert  M'Queen  and  Justus  Thorn, 
the  former  of  whom  he  has  known  for  18  years,  and  the 
latter  for  about  24  years,  but  is  not  personally  acquainted 
with  Scudder  Waring,  though  he  has  seen  him.  Robert 
M  Q.ieen,  as  long  u>  the  deponent  has  been  acquainted 
with  him,  has  been  employed  in  the  working  at  mills,  and 
making  machinery  for  mills  of  different  kinds,  and  that 
the  same  has  been  the  case  with  the  said  Justus  Thorn. 
The  deponent  could  mention  a  great  number  of  mills  and 
iron  works  that  both  the  said  M'Queen  and  Thorn  have 
been  employed  in  building  for  different  persons  throughout 
the  country,  and,  from  their  great  experience  in  the  mill- 
ing business,  as  before  mentioned,  the  deponent  considers 
them  fully  competent  to  form  a  true  and  correct  estimate 
of  mills  and  their  appurtenances.  The  said  M'Queen  and 
Thorn  have  great  reputation  in  their  profession,  and  their 
standing  in  society,  as  men  of  probity,  integrity,  and  ta- 
lents, is  unexceptionable. 

Tettimony  Robert  M'Cord  testifies  as  follows,  viz. 
ai'Ccrd.  To  the  twelfth  interrogatory — The  deponent  saith,  that 
he  knows  Robert  M'Queen  merely  by  having  seen  him  in 
this  city,  [New- York.]  That  Justus  Thorn  he  has  known 
for  twenty-six  or  twenty-seven  years,  and  he  first  became 
acquainted  with  him  when  he,  the  said  Justus,  was  an  ap- 
prentice to  a  mill-wright :  that  the  said  Justus  Thorn  is  ge- 


133 

'"ike liberally  considered  and  spoken  of,  among  the  deponent's 
*  icquaintances,  and  others,  as  the  first  mill-wright  in  West- 
Chester  county.    The  deponent  knows  of  his  building  a 

1  xkill  for  Joseph  Tompkins,  in  Yorktown,  consisting  of  two 

pun  of  stones  ;  and  he  understood  he  built  one  for  Mesier, 
"liii-  pat  Wappinger's  Creek,  and  also  iron-works  for  Mr.  Brews- 

Iter,  and  the  deponent  knows  of  his  being  employed  in 
iui  (other  places,  in  repairing  mills.    As  to  the  said  Scudder 

IWaring,  the  deponent  has  known  him  about  twelve  years, 
ilalland  although  he  is  not  thought  to  possess  as  great  natural 
Ji,  Italents,  as  a  mechanic,  as  the  said  Justus  Thorn,  yet  that 
tolhe  is  considered  a  good  and  capable  workman,  as  a  mill- 
If<l  I  wright,  and  has  almost  as  much  reputation  in  his  profes- 

sion,  as  the  said  Justus  Thorn.  The  depoi  ent,  from  the 
cii  I  skill  and  experience  of  the  said  Thorn  and  Waring,  is  of 
id  I  opinion  that  they  are  fully  competent  to  form  a  correct  es- 
A  I  timate  of  mills  and  their  appurtenances  ;  and,  as  to  their 
Ij  character,  they  enjoy  a  good  reputation,  and  are  gene- 
1  |i  rally  regarded  as  men  of  truth  and  good  faith,  and  he  does 
:  |  not  know,  nor  has  he  ever  heard,  any  thing  against  their 
I  characters. 

To  the  twenty-third  interrogatory — The  deponent  saith, 
!  that  he  is  well  acquainted  with  the  mills  and  premises  men- 
tioned and  referred  to  in  said  interrogatory,  and  that,  pre- 
vious to  the  building  of  said  mills  by  the  respondents, 
there  were  two  griit  mills  standing  on  the  said  premises, 
one  of  which,  however,  was  not  in  use  at  the  time  of 
building  said  new  mill,  but  the  other  one  was.  It  had  only 
one  run  of  stones,  but  was  very  much  resorted  to,  and 
used  to  be  considered  as  the  principal  mill  in  that  part  of 
the  country,  on  account  of  its  having  a  never-failing  sup- 
ply of  water.  The  deponent,  when  a  lad,  used  to  go  to 
said  mill,  frequently,  with  grain,  and  when  the  respondents 
began  to  build  their  mills,  on  the  premises,  the  said  mill 
was  still  going,  and  they  made  use  of  it  for  grinding.  The 
deponent  lived  on  said  premises  at  the  time  the  respon- 


134 


dents  began  their  said  mill,  and  that  the  said  old  mill  was 
then  tended  by  John  Bice,  but  how  long  they  continued 
to  use  the  same  the  deponent  does  not  know,  as  he  went 
away  from  the  premises  not  long  afterwards. 

To  the  fourth  additional  interrogatory — The  deponent 
saith,  that,  as  he  has  before  mentioned,  he  is  well  acquaint-:  i 
cd  with  the  premises  in  question,  and  that  he  worked  in 
the  employ  of  the  respondents,  at  the  time  of  their  erect- ■ 
ing  said  mills,  and  that  he  assisted  in  getting  the  stone  for  1 
the  foundation,  and  also  assisted  in  digging  the  raceway. 
While  the  deponent  worked  there,  as  aforesaid,  all  the 
stone  for  the  said  foundations  was  taken  from  olfthe  said 
premises  in  question,  as  inquired  about  in  said  interroga-  - 
tory,  though  he  was  occasionally  absent,  and  he  does  not 
know,  to  a  certainty,  whether  or  not,  during  that  time, 
stone  was  taken  from  any  other  place,  for  the  purpose 
aforesaid.    As  to  the  raceway,  he  recollects  of  no  stones 
being  used  for  the  same  but  what  were  taken  from  the 
spot.    He  did  not  work  at  the  darn,  but,  as  the  bed  of  the 
river  is  very  stony,  he  thinks  it  probable  that  no  other  stone 
or  gravel  was  used  than  what  was  found  on  the  spot,  or 
close  by. 

To  the  fifth  interrogatory — The  dug  part  of  the  race- 
way in  question  is  about  thirty  rods,  the  rest  of  it  being 
formed  by  a  small  island.  The  dam  commences  at  one 
end  of  said  island,  and  stretching  up  the  river  a  little  way, 
then  extends  across  to  the  other  shore,  but  he  does  not  re- 
collect the  length  thereof.  The  said  dam  is  principally 
made  of  logs  laid  upon,  and  connected  with,  the  large 
stones  in  the  bed  of  the  river,  and  on  the  shore.  He  does 
not  recollect,  however,  of  there  being  much  gravel  in  said 
dam. 

John  Bice  testifies  as  follows,  viz. 
Testimony  of     To  the  twenty-third  interrogatory — The  deponent  saith. 

Jobo  Bice.  j  . 

that  he  knows  the  mills  and  premises,  mentioned  and  in- 


135 


uired  of  in  said  interrogatory,  and  that,  before  the  re- 
pondents  built  the  mills  in  question,  under  their  lease 
om  the  Van  Cortlandts,  there  were  two  mills  erected  on 
e  said  premises,  one  of  which  was  in  operation  at  the 
'me  the  respondents  began  to  build  their  said  mills,  but 
he  other  had  gone  to  decay,  and  was  not  used.  The  one 
rst  mentioned,  which  was  in  operation,  had  a  dam 
nd  raceway  conducting  water  thereto.  The  deponent 
occupied  the  said  mill,  and  worked  it  upon  shares  with 
General  Van  Cortlandt,  but  he  removed  from  thence  to 
the  distance  of  about  three  miles,  when  the  respondents 
took  possession  of  the  premises,  and,  as  the  said  mill  was 
then  serviceable  and  in  use,  he  presumes  the  respondents 
had  the  use  of  it  while  their  new  mills  were  building,  but 
he  does  not  know  this,positively,  as  a  fact. 

Solomon  Teller  testifies  as  follows,  viz. 

To  the  twenty-third  interrogatory — The  deponent  saith,  Tesso™ 

T  tiler 

that  he  is  well  acquainted  with  the  mills  mentioned  and 
referred  to  in  the  said  interrogatory,  which  were  built  by 
the  respondents  upwards  of  twenty  years  ago.  When  the 
respondents  began  their  said  mills,  there  were  two  grist- 
mills on  the  said  premises,  one  of  which  was  out  of  use  for 
grinding,  and  used  as  a  store-house  and  cooperage,  but  the 
other  was  in  operation,  and  ground  for  the  country.  The 
deponent  lived,  at  that  time,  in  the  same  house  with  John 
Bice,  who  tended  the  said  mill,  and  the  respondents  began 
to  use  the  said  last  mentioned  mill,  at  the  time  the  said 
Bice  and  the  deponent  moved  away  from  the  premises, 
namely,  at  the  time  they  began  to  build  their  mills.  About 
eight  months  afterwards,  the  deponent  went  to  the  said 
old  mill  with  a  load  of  grain,  and  found  the  said  mill  in  ope- 
ration, under  the  respondents,  and  in  their  occupation,  at 
which  time  their  new  mills  were  not  completed. 


136 

John  Peterson  testifies  as  follows,  viz. 
Te^iminyof     To  the  twenty-third  interrogatory — The  deponent  saith, 
•°u  that  he  is  well  acquainted  with  the  premises  mentioned 

and  described  in  said  interrogatory,  when  the  respondenti  . 
built  their  mills,  under  their  lease  from  the  Messrs.  VaH. 
Cortlandts  ;  and  that  the  deponent  work<  d  in  their  enfJ'  . 
ploy,  as  a  labourer,  when  they  tirsl  began  to  cut  the  tim-  I  ; 
ber  for  building  their  aforesaid  mills  on  the  premises  in  j 
question.    When  the  respondents  began  to  build  their  said 
mills,  there  were  two  grist-mills  on  the  premises,  one  of 
which  was  not  in  use  as  a  mill,  but  the  other  one  was  used 
as  such,  and  ground  for  the  country.    The  respondents,*] 
while  they  were  building  their  said  new  mills,  occupied  and 
used  the  said  two  grist-mills,  and  the  deponent  remembers 
going  to  the  said  mill  that  was  in  use  as  aforesaid,  with  corn, 
and  having  the  same  ground  there  by  Mr.  Underhill,  one  of 
the  respondents  ;  and  the  deponent  believes  that  the  re-  ;j 
spondents  continued  to  use  the  said  last  mentioned  mill, 
until  their  new  mills  were  finished. 

Garret  Williams  testifies  as  follows,  viz. 
G%v'iTiiams0f    To  the  last  interrogatory — The  deponent  saith,  that,  after  I 
the  ground  had  been  levelled,  for  the  raceway  aforesaid, 
a  black  man  was  emp'oyed  in  digging  out  the  same,  and 
had  proceeded  about  three  or  four  rods,  when  the  deponent 
spoke  to  the  respondents,  to  know  if  he  could  not  have 
some  part  of  said  job,  when  he  was  informed  by  them,  that 
the  said  black  man  was  already  engaged  for  that  purpose,  ' 
and  that  it  was  his  job,  or  words  to  that  effect.  The  depo- 
nent understood,  at  the  time,  and  it  was  a  thing  well  known, 
that  the  said  black  man  was  to  have  one  shilling  a  foot  in 
length,  for  digging  out  said  raceway,  and  the  same  being 
about  four  feet  deep,  and  five  or  six  feet  wide,  he  was  able 
to  earn  seven  or  eight  shillings  a  day,  which  was  more  than 
as  much  again  as  the  deponent  earned  by  working  at  the 


137 


dam,  he  receiving  only  three  shillings  and  sixpence  per 
day. 

To  the  fourth  additional  interrogatory — The  deponent 
saith,  that  the  dam  in  question  was  composed  of  stones  and 
timber,  and  some  gravel,  and  that  most  of  said  stones  were 
made  use  of  in  the  said  dam,  without  being  moved  from 
their  natural  situation  ;  the  bed  of  the  river  being  full  of 
rocks  and  stones,  and  the  timber  used  in  said  dam  was 
braced  against  the  stones,  and  the  upper  side  thereof  co- 
vered with  short  plai.ks,  and  ho  does  not  recollect  that  any 
other  stones  were  used  thnn  those  lhat  were  found  on  the 
spot,  or  close  by,  and  that  the  gravel  made  use  of  was  ta- 
ken from  the  shore,  or  bank,  on  each  side.  The  deponent 
saith,  that  he  does  not  recollect  in  pa-,  ticular,  where  the 
stones  were  procured  that  were  used  in  the  foundation  of 
the  mill ;  he  believes,  however,  that  every  stone  used 
therein  was  taken  from  off  the  premises,  as  the  place  is 
very  stony. 

On  the  26th  day  of  August,  1816,  the  following  order 
was  entered  in  the  cross  suit,  viz. 

At  a  court  of  Chancery,  held  for  the  state  of  New- 
York,  at  the  city  of  Albany,  on  the  twenty-sixth 
day  of  August,  in  the  year  of  Lord  one  thousand 
eight  hundred  and  sixteen. 

Present, 

The  Honourable  James  Kent,  Esq.  Chancellor. 
Philip  Van  Cortlandt,  Pierre  Van  Cortlandt,  Catharine  Van 
Wyck,  Gerard  G.  Beekman,  and  Cornelia,  his  wife,  and 
Philip  S.  Van  Renselaer,  and  Jinn  his  wife,  against  Abra- 
ham I.  Underbill,  Joshua  Underbill,  Samuel  Molt,  and 
David  Lydig. 


18 


138 


On  reading  and  filing  the  affidavit  of  William  N.  Dyck- 
man,  junior,  the  solicitor  for  the  complainants,  and  on  mo- 
tion of  Mr.  Henry,  on  behalf  of  Mr.  Munro,  of  counsel  for 
the  complainants  and  defendants,  respectively,  it  is  order- 
ed, that  the  depositions  of  Thomas  Burling,  William  Bur- 
ling, Joseph  Tompkins,  Walter  Fowler,  Daniel  W.  Bird- 
order  th.t  sail,  Adoniiah  Cock,  John  F.  Hollman,  Scudder  Waring, 

thetettlmo  . 

djt  id      James  Diven,  Justus  Thorn,  John  Bice,  Solomon  Teller, 

or  if  mil  «uit 

iTtC'r^'  John  Peterson,  Robert  MQueen,  Jacob  Doughty,  Robert 
,BlL  M'Cord,  William  Fowler,  Garret  Williams,  George  Tomp- 
kins, and  Theodorus  C.  Van  Wyck,  taken  before  Anthony 
Blcecker,  Esq.  in  a  certain  cause,  wherein  the  above  na- 
med defendant,  Abraham  I.  Underhill,  and  Joshu;i  Under- 
bill, are  complainants,  and  the  above  named  complainants 
are  defendants,  may  be  read  at  the  hearing  of  this  cause, 
and  in  all  subsequent  proceedings  therein,  subject  to  all 
just  exceptions  to  the  competency  of  such  proof. 

Nathan  Andcson  was  afterwards  examined  in  the  cross 
suit,  and  his  testimony  being  the  same  as  in  the  original 
suit,  is  not  repeated. 

Both  causes  were  argued  together  before  the  chancellor 
in  September  term,  1816. 

petition   of    On  the  20th  of  January,  1817,  before  the  chancellor 

■[>l>ellan!< 

offehneto    pronounced  his  decree,  the  following;  petition  was  filed  on 

release  the    •  '  °  * 

gy.gffjft  the  part  of  the  appellants,  viz. 

•a  is. 

IN  CHANCERY. 
State  of  New- York. 
Philip  Van  Cortlandt  and  others  against  Abraham  I.  Under- 
hill, and  Joshua  Underhill. 
To  the  Honourable  James  Kent,  Esq.  Chancellor  of  the 
said  State, 

Humbly  Shewelh, 

That  the  above  cause  has  been  heard,  and  is  now  be- 
fore your  Honour  to  be  decided :  that  your  petitioners  have 


139 


concluded  that  it  would  be  more  eligible  for  them,  instead 
of  paying  the  deponents  the  eighteen  thousand  dollars,  the 
sum  at  which  the  mill  and  other  premises,  for  that  purpose 
specified  in  the  bill  of  complaint  of  your  petitioners,  have 
been  appraised,  by  appraisers,  as  set  forth  in  said  bill,  to 
relinquish  the  said  premises  to  the  said  defendants,  and 
least  it  might  be  objected  to  such  offer,  on  the  part  of  your 
petitioners,  unless  made  while  the  decision  is  yet  un- 
known, it  will  be  too  late  in  the  event  it  should  be  against 
your  petitioners : 

Your  petitioners,  therefore,  humbly  pray,  that  your  ho- 
nour will  decree,  and,  as  by  their  counsel,  your  petitioners 
release  all,  and  every  the  said  premises  to  the  defendants, 
in  fee,  together  with  the  lands  whereon  the  same  are, 
and  such  quantity  of  land,  adjacent  thereto,  as  may  be  re- 
quisite to  the  full  and  entire  use,  occupation,  and  enjoy- 
ment of  the  said  premises  ;  the  whole  to  be  comprehended 
within  such  limits  and  bounds,  and  to  contain  such  quanti- 
ty, as  your  Honour  shall  deem  meet  and  reasonable. 
January  20,  1817. 

M.  Van  Beuren,  of  Counsel  for  Complainants. 
Thos.  Addis  Emmet,  of  Counsel  for  Complainants. 

The  offer,  on  the  part  of  the  appellants,  as  contained  in 
the  petition,  not  having  been  accepted  by  the  respondents, 
the  petition  was  dismissed. 

On  the  twenty-seventh  day  of  January,  1817,  the  Chan- 
cellor made  the  following  decree  in  both  suits,  viz. 


no 


2jr*of*,thT  a  ro,,rt  °f  chancery,  held  for  Ihc  stale  of  New- 

Emmm^  York>  at  the  capitol,  in  the  city  of  Albany,  the 

twenty-seventh  day  of  J  anuary,  in  the  year  of 
our  Lord,  one  thousand  eight  hundred  and  se- 
venteen. 

Present, 

The  Honourable  James  Kent,  Esq.  Chancellor. 

Abraham  I.  Underbill,  and  Joshua  Underhlll,  against  Philip 
Van  Cortland  t,  Pierre  Van  Cortlundt,  Catharine  Van 
Wyck,  Gerard  G.  Biekman,  and  Cornelia  his  wife,  and 
Philip  S.  Van  Rensselaer,  and  Jinn  his  wife. 

Abraham  I.  Und'.rhill,  Joshua  Underhill,  David  Lydig,  and 
Samuel  Molt,  impleaded  with  Nathan  Anderson  ads.  Philip 
Van  Cortlanelt,  Catharine  Van  Wyck,  Gerard  G.  Beek- 
man,  and  Cornelia  his  wife,  and  Philip  S.  Van  Rensselaer, 
and  Ann  his  wife. 

The  first  of  these  entitled  causes  being  an  original,  and 
the  other  a  cross  cause,  and  the  t-aid  causes  having  been 
brought  to  a  hearing  together,  at  the  last  September  term 
of  thi*  court,  held  at  tbe  city  of  New-York,  and  the  mat- 
ter being  opened  and  debated  by  counsel  for  the  parties 
respectively,  that  is  to  say,  b)  Mr.  Hanson,  and  Mr.  Riggs, 
on  behalf  of  the  complainants  in  the  original,  and  of  the 
defendants,  excepting  Nathan  Anderson,  in  the  cross  cause, 
and  Mr.  Emmet,  and  Mr.  Van  Wyck,  for  the  other  par- 
ties, and  the  pleadings,  proofs,  and  exhibits,  being  read 
and  duly  considered,  whereupon,  and  on  motion  of  Mr. 
Robert  P.  Lee,  solicitor  for  the  complainants,  his  honour, 
the  chancellor,  this  day,  hath  ordered,  adjudged,  and  de- 
creed, and  by  virtue  of  the  power  and  authority  of  this 
court,  doth,  accordingly,  order,  adjudge,  and  decree,  that 
the  bill,  in  Ihe  cross  cause  of  the  said  Philip  Van  Cortlandt 
and  others,  the  complainants  therein,  as  against  the  said 


Ill 


defendants,  in  that  case,  Abraham  I.  Underhill,  Joshua 
Underbill,  David  Lydig,  and  Samuel  Mott,  be  dismissed 
for  want  of  equity  ;  and  the  same  is,  and  hereby  stands 
dismissed,  accordingly,  with  costs  of  suit  to  be  taxed  :  and 
that  the  said  defendants,  as  to  whom  the  said  bill  is  dis- 
missed, have  execution  for  the  said  costs  according  to  law, 
and  the  course  of  this  court :  and  the  chancellor  doth  de- 
clare, adjudge  and  decree,  that  the  valuation  or  appraise- 
ment, in  the  pleadings  mentioned,  of  the  mills  and  what- 
ever appertained  thereto  in  the  pleadings,  also  mentioned, 
and,  also,  of  all  the  other  buildings  situate  on  the  demised 
premises,  in  the  pleadings  referred  to,  made  by  Samuel 
Mott,  Nathan  Anderson,  and  David  Lydig,  on  or  about  the 
eighth  day  of  July,  in  the  year  one  thousand  eight  hundred 
and  thirteen,  is  binding  and  conclusive  upon  the  parties, 
complainants  and  defendants,  in  the  original  cause  ;  by 
means  whereof  the  said  complainants,  Abraham  I.  Under- 
hill, and  Joshua  Underhill,  became,  and  were,  entitled  to 
claim,  and  receive  from  Pierre  Van  Cortlandt,  since  de- 
ceased, and  the  present  defendant,  Philip  Van  Cortlandt, 
who  were  the  only  original  defendants,  in  the  said  original 
cause,  immediately  after  the  said  valuation  or  appraise- 
ment was  made,  the  sum  of  eighteen  thousand  five  hun- 
dred dollars,  being  the  amount  of  the  said  valuation,  or 
appraisement ;  and  the  said  complainants  are  now  entitled 
to  receive  the  said  last  mentioned  sum  of  money  from  the 
now  defendants,  Philip  Van  Cortlandt,  Pierre  Van  Cort- 
landt, Catharine  Van  Wyck,  Gerard  G.  Beekman,  and 
Cornelia  his  wife,  and  Philip  S.  Van  Rensselaer,  and  Ann 
his  wife,  the  said  Philip  Van  Cortlandt  being  personally 
responsible  to  the  said  complainants  for  the  said  sum  of 
money  as  an  original  contracting  party,  and  the  said 
Philip  Van  Cortlandt,  and  Pierre  Van  Cortlandt,  Ca- 
tharine Van  Wyck,  Gerard  G.  Beekman,  and  Cornelia 
his  wife,  and  Philip  S.  Van  Rensselaer,  and  Ann  his 
wife,  being  answerable  to  the  said  complainants  for*  the 


1  12 

said  sum  of  money,  as  the  real  and  personal  represen- 
tatives of  the  said  Pierre  Van  Cortlandt,  deceased,  who 
was  formerly  a  defendant  in  the  original  cause,  to  be 
paid  out  of  the  personal  assets  which  were  of  the  said 
Pierre  Van  Cortlandt,  deceased,  at  the  time  of  his  death, 
in  a  due  course  of  administration,  if  the  same  be  sufficient, 
and  if  the  personal  assets  be  not  sufficient,  then  that  the 
lands  and  real  estate  whereof  the  said  Pierre  Van  Cort- 
landt, deceased,  died  seised,  situate  in  this  state,  and  which 
descended  upon  the  said  defendants,  or  any  of  them,  by 
the  decease  of  the  said  Pierre  Van  Cortlandt,  deceased, 
or  which  he  devised  to  the  said  defendants,  any  or  either 
of  them,  in  and  by  his  last  will  and  testament,  in  the 
pleadings  mentioned,  and  which  remain  in  their  hands,  or 
in  the  hands  of  any  of  them,  are  to  be,  and  are  hereby 
made  liable  to  make  up  what  the  personal  assets  shall  be 
deficient  to  satisfy  the  said  complainants  the  sum  before 
mentioned,  with  interest  thereon,  if  interest  thereon  shall 
be  hereafter  allowed  upon  the  same  by  this  court.  And 
it  is  further  declared  and  decreed,  that  the  said  defend- 
ants are  entitled  to  receive  from  the  complainants  the  va- 
lue of  the  timber  referred  to  in  the  lease,  in  the  pleadings 
set  forth,  cut  and  used  by  the  complainants,  or  others,  for- 
merly their  co-lessees,  for  the  building  any  mill  or  mills, 
or  other  buildings,  on  the  said  demised  premises,  estima- 
ting the  said  value  of  tha  said  timber  as  it  was  when  stand- 
ing, and  immediately  before  it  was  cut  down,  according  to 
the  provisions  of  the  said  lease,  in  that  behalf;  which 
last  mentioned  value,  when  ascertained,  to  be  deducted 
from  what  shall  be  found  due,  and  allowed  to  the  com- 
plainants by  this  court.    And  it  is,  then  fore,  further  or- 
dered and  decreed,  that  it  be  referred  to  a  master  in  chan- 
cery for  the  state  of  New- York,  to  take  an  account  of  what 
is  due  to  the  complainants,  on  the  foot  of  the  said  valua- 
tion or  appraisement,  made  by  the  said  Samuel  Mott,  Na- 
than Anderson,  and  David  Lydig,  herein  before  mention- 


143 


ed,  by  calculating  lawful  interest  thereon,  from  the  said 
eighth  day  of  July,  in  the  year  one  thousand  eight  hun- 
dred and  thirteen.  And  that  the  said  master,  also,  take 
an  account  of  what  is  due  to  the  defendants  for  the  timber 
cut  by  the  complainants,  or  others,  their  former  co-lessees, 
on  the  lands  which  were  of  the  said  Pierre  Van  Cortlandt, 
deceased,  and  Philip  Van  Cortlandt,  or  either  of  them, 
and  used  by  them  for  the  building  any  mill  or  mills,  or  other 
buildings,  on  the  premises  demised,  in  and  by  the  lease,  in 
the  pleadings  mentioned,  computing  the  value  of  the  said 
timber  as  it  was  when  standing,  and  immediately  before  the 
same  was  felled.  And  it  is  further  ordered,  that  the  said 
master,  also,  take  an  account  of  the  personal  estate,  which 
was  of  rhc  said  Pierre  Van  Cortlandt,  deceased,  at  the  time 
of  his  decease,  and  of  the  administration  thereof,  and  of 
what  remains  thereof  undiminished,  and  an  account  of  the 
real  estate  and  chattels  real,  whereof  the  said  Pierre  Van 
Cortlandt,  deceased,  died  seised,  possessed,  or  entitled  to, 
and  the  value  thereof,  and  upon  which  of  the  said  defend- 
ants the  said  real  estate,  or  any  part  thereof,  descended,  at 
the  death  of  the  said  Pierre  Van  Cortlandt,  and  to  which 
of  the  said  defendants,  the  said  Pierre  Van  Cortlandt,  de- 
ceased, in  and  by  his  last  will  and  testament,  devised  the 
real  estate,  whereof  he  died  seised,  or  to  which  he  was  en- 
titled, and  the  situation  and  value  of  all  such  real  estate, 
whereof  the  said  Pierre  Van  Cortlandt  died  seised;  and 
■  that  the  master  report  to  the  court,  on  the  premises,  with 
all  convenient  speed.  And  the  question  of  allowing  inte- 
rest to  the  complainants,  on  the  said  eighteen  thousand, 
five  hundred  dollars,  as,  also,  the  question  of  costs,  in  the 
original  cause,  and  all  further  directions  therein,  are  re- 
served, until  the  master's  report  shall  come  in. 

From  this  decree  an  appeal  has  been  filed  in  each  suit. 
The  following  points  are  submitted,  on  the  part  of  the 
appellants,  viz. 


144 


1st.  That  the  appraisement  or  valuation,  mentioned  in  the 
pleadings,  ought  not  to  be  enforced  against  the  appel- 
lant's, because 

2d.  The  appraisement  is  grossly  excessive,  extravagant,  and 
unjust. 

3d.  Because  the  said  appraisers  did  not  duly  examine  the 
property  and  premises  to  be  appraised ;  nor  fully  hear 
the  appellant,  Philip  Van  Cortlandt,  and  the  said 
Pierre  Van  Cortlandt,  deceased,  and  their  witnesses,  on 
the  matters  submitted  to  them — but  held  a  private  and 
cx-parte  interview  with  the  respondent,  Abraham  1.  Un- 
derbill, and  received  from  him  false  statements  of  facts, 
on  which  they  acted,  in  estimating  the  value  of  the  pro- 
perty appraised. 

4th.  Because  unjust  and  improper  means  were  used  to  make 
the  property  to  be  appraised,  appear  more  valuable  than 
it  really  was,  and  to  conceal  from  the  appraisers  the  true 
state  of  repair  in  which  it  was. 

5th.  Because  the  appraisers  estimated  and  valued,  and  in- 
cluded in  the  said  appraisement,  certain  licenses  or  pa- 
tent rights,  and  other  property,  which  ought  not  to  have 
been  appraised,  and  against  which  the  appellant,  Philip 
Van  Cortlandt,  and  the  said  Pierre  Van  Cortlandt,  de- 
ceased, objected. 

6th.  Because  the  appraisers  proceeded  with  so  much  haste 
and  negligence,  as  not  to  become  possessed  of  a  full, 
knowledge  of  the  subject  matters  submitted  to  their  judg- 
ment, and  made  up  their  appraisement  without  due  ob- 
servation. 

7th.  That  the  appellants  ought  to  be  allowed  for  the  tim- 
ber cut  by  the  lessees  or  their  order,  either  on  the  de- 
mised premises,  or  other  hnds  of  the  appellant,  Philip 
Van  Cortlandt,  and  Pierre  Van  Cortlandt,  deceased,  or 
either  of  them,  and  as  for  waste  of  every  kind,  commit- 
ted, or  suffered  by  the  said  lessees. 

8th.  That  the  original  bill  ought  to  be  dismissed,  with  cost*. 


3U3 

9th.  That  a  feigned  issue  ought  to  be  directed  to  ascertain 
the  value  of  the  mills  and  appurtenances.  The  value  of 
the  timber  and  wood  cut  by  the  lessees,  on  the  demised 
premises  and  other  lands,  belonging  to  the  lessees,  for 
other  purposes  than  fire-wood,  to  be  used  on  the  pre- 
mises; and  the  amount  of  the  damages,  occasioned  by  tho 
waste,  committed  and  suffered  by  the  lessees. 

10th.  That  the  court  ought  to  direct  what  matters  and  thing3 
shall  be  considered,  as  appertaining  to  the  said  mills  ; 
and  that  nothing  ought  to  be  considered  as  so  apper- 
taining, except  the  machinery  in  and  about  the  mills ; 
and,  particularly,  that  the  licenses  to  use  Evans'  machi- 
nery, ought  not  to  be  considered  as  appertaining. 

11th.  That  the  decree  of  the  chancellor  ought,  therefore, 
to  be  reversed,  with  costs. 

12th.  That  the  offer  of  the  appellants,  to  release  to  the  re- 
spondents the  whole  premises  in  fee,  and  a  further  quan- 
tity of  land,  as  mentioned  in  the  petition,  and  the  refusal 
to  accept  the  offer,  afforded  a  sufficient  ground  for  the 
court  of  chancery,  and  for  this  court,  to  order  a  new 
trial,  or  new  appraisement. 


WM.  N.  DYCKMAN,  Jun. 

Solicitor  for  the  Appellants, 
THOS.  ADDIS  EMMET,  , 
JOHN  V.  HENRY,         (  °fCounsel 
M.  VAN  BEUREN,  f 


PIERRE  C.  VAN  WYCK 


Appellants. 


19 


CHANCELLOR'S  DECREE. 

The  Chancellor. — The  original  suit  between 
these  parties  was  brought  to  enforce  the  perform- 
ance of  an  award,  and  the  cross  suit  was  for  the  pur- 
pose of  relief  against  it. 

The  sum  awarded,  on  the  valuation  of  certain 
property,  was  18,500  dollars.  And  this  has  been 
deemed,  by  the  party  against  whom  it  was  awarded, 
as  an  excessive  valuation.  A  variety  of  objections 
have,  accordingly,  been  taken  to  the  proceedings  of 
the  arbitrators,  which  have  necessarily  led  the  par- 
ties into  voluminous  pleadings  and  proofs ;  and  it 
now  becomes  my  duty  to  give  these  objections  all 
the  consideration  and  discussion  to  which  they  may 
be  entitled. 

The  misconduct  of  the  arbitrators,  is  one  ground 
for  setting  aside  an  award.  The  misconduct  charged 
in  this  case  is  principally  from  the  refusal  to  hear 
evidence  offered  by  one  of  the  parties,  and  from 
holding  a  private  and  ex  parte  communication,  on  the 
subject  before  them,  with  the  opposite  party. 

I.  As  to  the  rejection  of  evidence. 

The  cross  bill  charges,  that  Theodorus  C.  Van 
Wyck,  the  agent  of  Pierre  Van  Cortland t,  one  of 
the  defendants  in  the  original  suit,  informed  the  ap- 
praisers, before  they  made  their  award,  that  "  he 
had  material  testimony  to  submit  respecting  the 
matters  submitted  ;  and  that  Lydig,  one  of  the  ap- 
praisers, declared  he  could  not  wait  to  receive  the 

A 


2 


testimony,  and  this  declaration  was  not  opposed  by 
the  other  appraisers ;  and,  in  consequence  of  that 
declaration,  the  testimony  was  not  produced.'" 

The  same  charge  was  made  by  the  defendants  in 
the  answer  to  the  original  bill. 

In  support  of  this  charge,  Anderson,  one  of  the  ar- 
bitrators, was  examined,  who  stated,  that  before  they 
finally  retired  to  deliberate,  Van  Wyck  "  offered 
some  evidence,  which  Lydig  refused  to  hear,  telling 
him  that  he  did  not  tMnk  the  appraisers  were  bound 
to  receive  any."    The  next  witness,  in  support  of 
the  charge,  is  Van  Wyck,  the  person  who  offered 
the  testimony,  and  he  says,  he  offered  "  to  bring 
witnesses  to  prove  that  the  raceway  would  not  cost, 
at  the  present  rate  of  wages,  more  than  1,000  dol- 
lars.    That  Lydig  replied,  4  that  he  could  not  wait 
to  receive  such  evidence.'     That  Van  Wyck  then 
offered  to  go  into  the  evidence  immediately,  and  no 
answer  was  given  by  either  of  the  arbitrators,  which 
he  considered  as  a  refusal." 

An  objection  has  been  raised  to  the  competency 
of  the  deposition  of  Van  Wyck,  on  the  ground  that 
his  examination  was  not  closed  by  the  examiner  until 
after  publication  had  passed.  The  examiner  certi- 
fies, that  it  commenced  on  the  28th  of  June,  and 
was  continued  to  the  5th  of  July.  How  this  irregu- 
larity arose  does  not  appear;  nor  is  it  suggested 
that  any  actual  abuse  has  arisen  in  consequence  of 
it;  and  the  witness  was  also  cross  examined,  on  the 
part  of  the  Underbills,  in  the  same  way.  I  do  not 
incline  to  suppress  the  deposition,  and  deprive  the 
party  entirely  of  the  benefit  of  Van  Wyck's  testimo- 


3 


ny.  It  would  seem  to  be  too  rigorous,  when  the 
other  patty  has  had  the  benefit  of  a  cross  examina- 
tion, and  has  not  raised  the  objection  until  the  hear- 
ing, when  no  re-examination  can  be  had,  and  when 
no  ill  use  is  stated  to  have  been  made  of  the  irregu- 
larity. The  question,  whether  the  deposition  shall 
be  suppressed,  is  a  matter  of  discretion ;  and  in 
Hammond's  case,  (Dickens,  50.)  and  in  Debrex's 
case,  (1  P.  Wms.  414.)  the  deposition  of  a  witness 
examined  after  publication  was  admitted  ;  in  the  one 
case,  because  the  opposite  party  had  cross  examined  ; 
and  in  the  other,  because  the  testimony  would  other- 
wise have  been  lost  forever. 

The  deposition  of  Anderson  is  also  objected  to. 
The  order  allowing  depositions  taken  in  the  ori- 
ginal cause,  to  be  read  in  evidence  in  the  cross  cause, 
excepted  that  of  Anderson.    He  was,  consequently, 
examined  in  the  cross  cause ;  but  how  was  he  exa- 
mined ?    By  copying  his  deposition  in  the  original 
cause.    He  went,  therefore,  before  the  examiner 
with  a  prepared  deposition.    This  is  against  the 
course  and  policy  of  the  court.    And  it  would  lead 
to  the  most  dangerous  practices.     The  witness 
ought  to  go  before  the  examiner,  as  Lord  Coke  ob- 
serves, (4  Inst.  279.)  "  untaught  and  without  in- 
struction."   He  should  be  free  to  answer  the  sifting 
interrogatories  that  are  framed  for  the  issue  in  that 
case,  instead  of  merely  filing  an  affidavit  ready  drawn. 
I  should  undoubtedly  be  justified  in  totally  suppress- 
ing the  deposition  of  Anderson  in  the  cross  cause, 
if  I  was  to  follow  the  strict  rule  of  authority.  {Amb. 
252.    Anon.    Shaw  v.  Lindsey,  15  Vcsey,  380.)  and 


4 


if  J  have  allowed  it  to  stand  in  consideration  of  the 
regularity  of  the  original  deposition,  I  hope  it  is  an 
indulgence  that  will  never  be  abused. 

In  opposition  to  this  evidence  of  Anderson  and 
Van  Wyck,  we  have  the  answers  of  Abraham  I.  Un- 
derbill, Mott,  and  Lydig,  who  give  a  full  explanation 
of  the  fact.  They  all  separately  state  to  this  effect, 
"  That  after  the  appraisers  had  heard  the  allegations 
and  proofs  of  the  parties,  and  had  conferred  toge- 
ther, Van  Wyck  came  into  the  room  and  offered  to 
produce  witnesses  to  prove  the  actual  cost  of  the 
dam  and  raceway,  and  that  the  witnesses  were  not 
present ;  and  that  Lydig  told  him,  with  the  acqui- 
escence of  the  other  two  appraisers,  that  such  testi- 
mony was  not  material  or  relevant,  as  the  inquiry 
was  not,  what  the  works  had  cost,  but  what  they 
were  then  worth.  And  they  all  deny  that  Van 
Wyck  offered  any  other  testimony,  or  to  any  other 
point," 

Mott  and  Lydig,  in  their  depositions  taken  in  the 
original  cause,  equally  disprove  the  allegation  of  a 
refusal  to  hear  testimony.  Lydig  says,  the  apprai- 
sers did  not  refuse  to  receive  further  testimony  offer- 
ed, or  ready  to  be  offered,  by  either  party,  as  long 
as  it  appeared  to  have  any  bearing  on  the  appraise- 
ment; and  that  no  witnesses  were  offered  to  prove 
the  cost,  or  value,  of  the  premises  ;  and  if  either  par- 
ty had  requested  further  time  for  that  purpose,  the 
appraisers  would  have  allowed  it.  And  Mott  also 
testifies,  that  the  parties  were  asked  if  they  had  any 
thing  more  to  offer  or  produce,  and  they  said  nothing 
further;  and  that  Van  Wyck  asserted  in  the  room, 


5 


that  the  mill-dam  had  not  cost  as  much  as  the  plain- 
tiffs had  intimated,  and  that  could  be  shown  as  a 
fact,  and  he  urged  the  appraisers  to  take  it  into  con- 
sideration ;  to  which  they  answered,  that  it  was 
their  business  to  value  the  property  according  to  its 
present  value,  and  not  its  original  cost. 

It  has  been  said,  that  there  is  some  variance  be- 
tween the  depositions  of  Mott  and  Lydig  in  the  ori- 
ginal cause,  and  their  answers  in  the  cross  cause,  but 
I  do  not  perceive  it.  Their  depositions  are,  indeed, 
more  general  than  their  answers,  and  this  probably 
arises  from  the  particular  and  sifting  nature  of  the 
charges  and  interrogatories  in  the  cross  bill.  The  only 
expression  that  even  looks  contradictory,  is  one  of  Ly- 
dig's,  in  his  deposition,  that  no  witnesses  were  offered 
to  prove  "  the  cost  or  value"  of  the  premises.  But 
I  think  we  are  bound,  in  all  candour,  to  conclude,  that 
the  word  cost  was  here  used  as  synonymous  with  the 
word  value,  with  which  it  is  coupled  ;  because,  in  his 
answer,  he  explains  fully  the  offer  as  to  the  original 
cost. 

It  appears  to  me,  then,  to  be  a  just  and  necessary 
conclusion,  from  this  proof,  that  the  only  testimony 
offered  by  Van  Wyck,  was  that  relating  to  the  ori- 
ginal cost  of  the  dam  and  raceway.  The  weight  of 
evidence  is  decidedly  against  any  other  conclusion. 
Van  Wyck  stands  alone  against  the  answer  of  Un- 
derbill, and  the  answers  and  depositions  of  Mott  and 
Lydig.  I  say  he  stands  alone,  for  the  deposition  of 
Anderson  is  general,  and  does  not  state  what  was 
the  nature  of  the  evidence  offered,  or  to  what  point; 
and  it  may  as  well  relate  to  the  original  costs  of  the 


6 


works  as  to  any  other  object.  This  testimony  may 
be  rendered  consistent  with  that  of  the  other  apprai- 
sers. 

And  it  cannot,  surely,  become  a  question,  whether 
evidence  of  the  cost  of  a  dam  and  raceway,  built  21 
years  before,  was  material  in  an  inquiry  as  to  their 
then  existing  value.  There  could  be  very  little,  if 
any,  analogy  between  the  original  cost  and  the  pre- 
sent value,  considering  the  space  of  time  which  had 
intervened,  and  the  great  variations  in  prices  and 
labour,  and  business,  and  many  other  circumstances 
connected  with  such  works.  I  doubt  whether  any 
court  of  justice  would  have  deemed  such  evidence, 
in  such  a  case,  pertinent.  Instead  of  being  useful  in 
guiding  the  judgment,  it  would,  probably,  have  been 
delusive  or  injurious.  There  was  no  misconduct,  or 
even  the  want  of  due  discretion,  in  the  arbitrators, 
in  expressing  a  disinclination  to  wait  until  such  im- 
material, if  not  improper,  testimony  might  have  been 
hunted  up  and  produced. 

2.  Another  charge  is,  that  the  appraisers  had  a 
private  and  ex  parte  communication  with  Abraham  I. 
Underhill,  while  they  had  the  subject  under  delibe- 
ration. This  charge  is  made  in  the  answer  to  the 
original  bill,  and  also  in  the  cross  bill,  and  the  proof 
of  it  rests  upon  the  single  uncorroborated  deposition 
of  Anderson.  He  says,  it  was  proposed  by  him,  the 
witness,  to  call  in  Underhill,  to  ask  him,  what  money 
was  laid  out  on  the  mill,  dam,  and  raceway,  and  that 
he  was  in  alone  when  the  question  was  put  to  him, 
and  that  he  stated,  that  the  plaintiffs  had  laid  out 
20,000  dollars. 


7 


In  answer  to  this  charge,  Underhill  states,  that 
he  was  called  into  the  room  where  the  appraisers 
were  deliberating,  and  that  Philip  Van  Cortlandt 
and  Van  Wyck  went  in  with  him ;  and  that  some 
question  was  asked  him  by  Anderson  relative  to  the 
cost  of  the  dam  and  raceway,  and  he  answered,  he 
did  not  know,  as  no  separate  account  thereof  was 
kept,  and  only  an  account  of  the  costs  of  the  whole 
works ;  and  he  denies  that  he  had,  at  that,  or  any 
other  time,  any  separate  or  private  communication 
with  either  of  the  appraisers,  on  the  subject  of  the 
appraisement,  while  the  same  was  under  delibera- 
tion. 

The  answers  of  Mott  and  Lydig  state,  that  Un- 
derhill was  sent  for  to  obtain  some  information  rela- 
tive to  the  mill  of  Philip  Van  Cortlandt,  which  was 
also  submitted  to  their  appraisement ;  (though  un- 
connected with  this  controversy ;)  and  that  Van 
Cortlandt  was  sent  for  at  the  same  time,  and  was 
present  with  Van  Wyck;  and  they  have  no  recol- 
lection, and  one  of  them  says,  no  belief,  of  any  ques- 
tion being  asked  relative  to  the  cost  of  the  danr, 
raceway,  &c. ;  and  they  deny  that  any  of  the  ap- 
praisers held  any  ex  parte  or  private  conversation,  or 
communication,  with  him  in  the  absence  of  the  other 
parties. 

The  weight  of  evidence  is  clearly  against  the 
charge.  The  question  which  Anderson  put  to  Un- 
derbill, was  not  put  by  the  direction  or  sanction  of 
the  board ;  and  it  was  when  the  other  party  was 
present,  and  no  answer  was  given  communicating 
any  thing  material.    It  would  be  very  unjust,  afld 


8 


altogether  unprecedented,  to  allow  such  a  circum- 
stance to  affect  the  validity  of  the  whole  proceeding; 
and  it  may  be  proper  to  observe,  in  this  piace,  that 
the  credit  of  Anderson,  as  a  witness,  is  extremely 
impaired  by  his  own  confession  and  conduct.  He 
is  called  as  a  witness  to  impeach  his  own  award,  and 
his  own  integrity  ;  and  this 'case  falls  within  the  rea- 
son and  policy  of  the  rule  of  law,  (4  Johns  Rep.  487. 
4  B.Sr  P.  326.  4  Binney,  150.  J  Hen.  k  Munf.  385.) 
that  the  affidavit  of  a  juror  is  not  to  be  received  to 
impeach  his  verdict,  because  it  would  expose  jurors 
to  dangerous  practices,  and  to  be  tampered  with  by 
the  losing  party.  In  this  case,  Anderson  is  alleging 
his  own  turpitude.  He  says,  that  Mott  and  he  never 
did  confer  together,  and  disagree,  before  they  ap- 
pointed Lydig ;  and  he  avows  that  he  acted  with 
bad  faith  and  duplicity,  when  he  signed  a  report  that 
they  had  compared  opinions,  and  had  found  it  neces- 
sary to  choose  a  third  person  ;  and  when  he  told  the 
parties  that  they  two  had  disagreed  in  opinion,  and 
when  he  signed  the  award,  declaring  it  to  be  "  ac- 
cording to  his  best  judgment  and  belief,"  can  a  man 
be  entitled  to  credit,  when  he  comes  now  and  de- 
clares, that  he  acted  the  hypocrite  in  all  those  trans- 
actions ?  It  is  one  of  the  maxims  of  the  common 
law,  (4  Co.  Inst.  279.)  that  allegans  suam  turpitudi- 
nem  non  est  audiendus. 

3.  Another  charge  of  misconduct  in  the  arbitra- 
tors is,  that  they  did  not  examine  the  premises  with 
sufficient  accuracy,  to  enable  them  to  form  a  correct 
and  just  estimate  of  the  value.  Anderson  says  this 
himself,  though  it  does  not  appear  that  he  made  any 


9 


objection  at  the  time,  or  required  for  himself,  or  so- 
licited from  his  associates,  a  more  particular  exami- 
nation. Van  Wyck,  the  agent  of  Van  Cortlandt,  is 
of  the  same  opinion,  though  he  was  present  at  the 
view,  by  the  two  appraisers,  in  May,  and  by  all 
three  of  them  in  July,  and  was  active  in  showing 
and  pointing  out  the  state  of  the  works.  Some  of 
the  bystanders,  as  the  two  Fowlers,  were  of  the 
same  opinion,  and  one  of  them  was  surprized  that 
the  arbitrators  did  not  make  inquiries  of  him.  But 
the  other  two  arbitrators,  Mott  and  Lydig,  declare, 
that  they  did  make  a  careful,  particular,  and  satis- 
factory examination.  Mott  says,  that  he  and  Ander- 
son examined  the  works  in  May  for  two  days,  and 
about  two  hours  each  day,  and  that  it  was  a  careful 
examination  ;  and  that  the  works  were  examined  by 
all  of  them  in  July,  with  particular  attention;  and 
that  the  works  were  viewed  at  both  times  in  a  care- 
ful and  satisfactory  manner  ;  and  he  details  a  num- 
ber of  particulars.  Lydig  declares  the  same  thing. 
It  was  for  the  arbitrators  to  judge  when  their  exa- 
mination was  sufficiently  minute  and  particular  to 
satisfy  their  minds.  It  was  a  matter  resting  in  their 
sound  discretion.  It  would  be  impossible  for  any 
court  to  prescribe  a  precise  rule  on  this  subject.  It 
must,  rest  entirely  in  the  judgment  and  integrity  of 
the  men  selected  by  the  parties.  And  what  puts 
this  point  beyond  all  doubt  or  difficulty,  is  the  fact, 
that  the  parties,  by  themselves,  or  their  agent,  were 
present  and  conducted  the  view.  They  should  have 
directed  the  appraisers  to  more  particulars,  if  they 
wished  it,  or  thought  it  necessary.    They  might; 

B 


10 


have  deemed  the  examination  sufficient,  or  they 
would  have  pointed  to  objects  for  more  minute  in- 
spection, and  have  called  upon  the  appraisers  for  a 
more  accurate  survey.  The  appraisers  were  not 
only  satisfied  themselves,  but  they  had  every  reason 
to  conclude  that  the  parties  were  satisfied  also.  If 
the  parties  were  not,  they  should  have  spoken  at  the 
time,  when  the  remedy  could  have  been  provided. 
It  is  inadmissible  to  set  up  the  pretext  now.  And  it 
appears  to  me  that  no  award  was  ever  assailed  by  a 
more  unreasonable  and  groundless  objection. 

4.  Another  class  of  objections  goes  to  the  legal 
and  technical  form  of  the  proceedings. 

It  is  said,  that  Anderson  and  Mott  were  not  duly 
appointed  in  the  first  instance,  because  each  of  them 
was  not  selected  and  appointed  by  both  parties,  but 
each  party  separately  selected  a  man. 

The  words  of  the  lease  were,  that  the  mills,  &c. 
were  to  be  appraised  or  valued,  "  by  two  persons 
indifferently  chosen  by  the  parties,  and  in  case  of 
their  disagreement,  by  a  third  person,  to  be  chosen 
by  the  two." 

The  usual  construction  of  such  covenants,  is  the 
one  adopted  by  the  parties,  of  each  nominating  a 
person.  The  Van  Cortlandts  were  the  first  to  put 
that  construction  upon  the  lease,  by  commencing 
with  the  nomination  of  Anderson,  and  informing  the 
Underhills  of  it,  and  they  then,  on  their  part,  nomi- 
nated Mott :  and  no  objection  being  made  by  either 
party,  to  the  person  nominated  by  the  other,  the  two 
appraisers  were  received  and  acknowledged  by 
both  parties  as  truly  appointed.    Under  this  acqui- 


11 


escence  and  ratification,  the  appraisers  became 
"  chosen  by  the  par  ties,"  within  the  meaning  of  the 
covenant  ;  and  it  is  impossible  that  either  of  them 
can  now  be  permitted  to  say,  that  the  two  appraisers 
were  not  properly  chosen ;  a  nomination  by  each, 
with  the  assent  of  each  others  nomination,  is  as  rea- 
sonable and  fair  a  construction  as  could  have  been 
adopted. 

It  is  again  said,  that  the  two  appraisers  had  not 
"  disagreed,"  so  as  to  have  been   authorized  to 
choose  a  third  person.    But  it  is  admitted,  that  after 
devoting  part  of  two  days  to  the  inspection  of  the 
premises,  and  conversing  together  on  the  subject, 
the  two  appraisers  told  the  parties  they  had  disa- 
greed, and  could  not  agree  ;  and  they  also  signed  a 
writing,  in  which  they  stated,  that  they  had  examin- 
ed the  premises  for  parts  of  two  days,  and  compared 
opinions  as  to  their  present  real  value,  and  found  it 
necessary  to  choose  a  third  person.    What  further 
evidence  of  disagreement  could  have  been  required, 
or  given,  than  the  solemn  declaration  of  the  apprai- 
sers themselves  ?    It  is  true,  Anderson  now  declares 
this  was  all  imposition  and  falsehood  practised  upon 
the  parties ;  but  can  he  be  heard  in  such  an  allega- 
tion, or  is  it  worthy  of  any  credit  ?    After  a  party 
has  discharged  his  trust,  can  he,  at  any  time,  vacate 
all  his  acts  by  declaring  they  were  not  done  in  sin- 
cerity ?    If  this  was  to  be  tolerated,  there  would  be 
no  certainty  or  safety,  either  in  the  administration  of 
justice,  or  in  the  ordinary  business  of  mankind.  But 
Mott,  the  other  arbitrator,  contradicts  this  assertion 
of  Anderson,  and  says,  that  after  viewing  the  works, 


12 


he  and  Anderson  did  confer  together  touching  the 
value,  and  did  mention  widely  different  sums  ;  and 
that  there  did  not  appear  to  be  any  rational  prospect 
of  their  agreeing,  and  so  he  was  led  to  believe,  and 
in  fact,  that  they  did  not,  and  were  not,  able  to  agree. 
This  testimony  puts  an  end  to  all  further  question  on 
this  point. 

It  is  further  said,  that  Lydig  was  chosen  to  assist 
the  other  two,  and  was  not  chosen  as  an  umpire  to 
decide  independently  by  himself,  as  he  ought  to 
have  been,  according  to  the  intention  of  the  cove- 
nant. 

The  answer  to  this  objection  is,  that  Lydig  was 
chosen  with  the  consent  and  wish  of  all  parties,  to 
act  with,  and  assist  the  other  two  appraisers,  rather 
than  to  act  alone.  All  agreed  in  that  construction 
of  the  covenant,  and  the  appraisement  was  accord- 
ingly so  conducted.  This  is  a  conceded  fact,  and 
the  parties  must  be  deemed  to  have  concluded  them- 
selves, by  their  own  free  consent  and  agency,  from 
setting  up  any  other  construction  for  the  purpose  of 
defeating  the  award.  It  would  be  equally  unrea- 
sonable and  unjust.  But  if  Lydig  ought  to  have 
been  chosen,  and  to  have  acted  strictly  as  an  umpire, 
still  the  act  is  valid,  for  the  association  of  the  other 
two  appraisers  with  him,  in  viewing  the  premises  in 
consultation,  and  in  the  award,  does  not  vitiate  the 
award  by  him  as  umpire.  It  is  settled,  in  the  case 
of  Soulsby  v.  Hodgson,  (3  Bwr.  1474.  I  Bl.  Rep. 
463.)  that  if  the  arbitrators  join  in  the  umpirage,  it 
does  not  vitiate  it.  The  umpire  may  take  what  ad- 
vice, or  assessors,  he  pleases.    It  is  still  the  umpirage 


13 


of  the  umpire  only.  The  same  observation  was 
made  by  Lord  Alvanley,  as  master  of  the  rolls,  that 
"  an  arbitrator  might  make  use  of  the  judgment  of 
another  upon  whom  he  could  depend,  and  the  valua- 
tion of  that  person  is  his,  if  he  chooses  to  adopt  it." 

5.  There  is  a  charge  in  the  cross  bill,  though  there 
is  none  in  the  answer  to  the  original  bill,  of  fraudu- 
lent practices  by  the  Underhills,  in  procuring  the 
award.  The  charge  is,  that  they  covered  the  cog- 
pit  and  part  of  the  raceway  with  boards,  and  part 
of  the  garret  floor  of  the  mill  with  meal,  to  conceal 
defects  from  the  observation  of  the  appraisers. 

The  proof  of  this  charge  is  to  be  found  in  the  tes- 
timony of  Walter  and  William  Fowler — the  first  of 
them  states,  that  between  the  first  of  May  and  July, 
1813,  the  Underhills  covered  certain  decayed  parts 
of  the  mill  with  boards,  and  shing-les  where  it  leak- 
ed,  and  the  floor  on  which  the  water  had  leaked, 
was  strewn  over  with  meal  and  bran  by  Abraham  I. 
Underhill  ;  but  whether  for  the  particular  purpose 
of  hiding  the  marks  on  the  floor,  or  not,  he  does  not 
know.  The  other  witness  states,  that  on  the  day  of 
the  expiration  of  the  lease,  Abraham  I.  Underhill 
drove  some  shingles  into  the  roof,  it  having  rained 
the  day  before,  and  the  water  leaked  through  upon 
the  floor ;  and  in  order  to  hide  the  marks,  he  strew- 
ed meal,  or  flour,  on  it,  and  then  had  the  floor  swept, 
and  he  had  planks  laid  over  the  plate  of  the  flue 
which  was  decayed,  and  which  had  never  been  co- 
vered before,  by  which  means  the  decayed  parts 
were  concealed,  and  this  was  done  only  one  or  two 
days  before  the  expiration  of  the  lease  ;  and  that, 


II 


between  the  2d  of  May  and  8th  of  July,  boards  were 
nailed  up  against  the  cog-pit,  though  there  was  an 
inside  door  to  admit  persons  into  it,  and  which  was 
not  fastened. 

An  objection  was  made  to  the  competency  of  this 
proof.  The  depositions,  though  admitted  to  be  read 
in  the  cross  cause,  were  taken  only  in  the  original 
cause,  which  contained  no  such  charge  of  fraudulent 
concealments,  and  therefore  the  proofs  were  dehors 
the  pleadings,  and  not  relative  to  any  matter  then  in 
issue  ;  and  that,  though  the  depositions  in  the  origin- 
al cause  were,  by  a  general  order,  allowed  to  be 
read  in  the  cross  cause,  yet  the  order  never  could 
have  intended  to  render  valid  such  parts  of  the  de- 
positions as  contained  matter  not  properly  admitted 
when  the  depositions  were  taken. 

It  is  likewise  objected  to  the  cross  bill,  that  it 
ought  not  to  contain  new  matter  not  set  up  as  a  de- 
fence in  the  original  cause,  unless  it  be  new  matter 
subsequently  arising,  for  it  is  intended  only  as  aiding 
the  defence  to  the  original  suit,  and  cannot  be  more 
extensive  than  the  original  defence.  This  is,  un- 
doubtedly, the  general  principle  ;  but  I  am  not  clear 
that  the  cross  bill  may  not  set  up  additional  facts  as 
constituting  part  of  the  same  defence,  relative  to  the 
same  subject  matter.  The  first  objection  strikes  me  as 
more  weighty  ;  and  I  am  of  opinion  that,  upon  sound 
rule,  the  matter  improperly  admitted  in  the  deposi- 
tions in  the  original  cause,  continue  equally  improper 
when  the  depositions  are  used  in  the  cross  cause, 
and  that  if  the  plaintiffs  in  the  cross  cause  wished  to 
avail  themselves  of  that  matter,  they  ought  to  have 


15 


had  the  witness  re-examined.  Proof  taken  in  a 
cause  should  always  be  pertinent  to  the  issue  in  that 
cause,  secundum  allegata,  for  the  opposite  partj  is 
not  to  be  supposed  to  have  filed  his  cross  interroga- 
tories with  any  other  view,  and  he  is  deprived  of  the 
benefit  of  an  examination  on  his  part  to  such  new 
matter. 

I  am  of  opinion,  therefore,  that  all  such  parts  of 
the  testimony,  taken  in  the  original  cause,  as  related 
to  the  misconduct  of  the  party,  ought  to  be  suppres- 
sed, and  this  would  leave  the  charge  of  the  cross  bill 
totally  without  proof.  There  was  no  witness  exa- 
mined in  the  cross  cause  except  Anderson,  and  he 
proves  nothing  on  this  point. 

But  if  we  take  this  new  matter  into  consideration, 
ex  gratia,  and  in  order  to  view  the  case  in  every  pos- 
sible light,  how  does  the  proof  stand  ? 

Abraham  I.  Underhill,  in  his  answer,  denies  that 
he  ever  did  use  any  means  whatever,  directly  or  in- 
directly, to  conceal  from  the  appraisers  the  real  and 
true  state  of  repair  of  the  works.  That  it  became 
necessary  to  close  the  business,  and  clear  the  mill  of 
flour  and  other  property,  so  that  the  premises  might 
be  in  a  proper  state  and  condition  for  delivery  to  the 
lessors,  at  the  expiration  of  the  time,  and  as  soon  as 
they  should  be  valued,  &c.  That  the  works,  ac- 
cordingly, ceased  to  be  used,  and  the  milling  busi- 
ness was  brought  to  a  close,  about  the  last  of  April, 
and  he  directed  the  side  of  the  cog-pit  (o  be  boarded 
up,  through  which  persons  might  otherwise  have 
entered,  and  the  mill  was  otherwise  fully  secured  to 
prevent  the  machinery  from  receiving  injury  from 


16 


evil  minded  persons,  and  to  preserve  the  same,  and 
for  no  other  purpose.  He  says  further,  that  a  short 
time  before  the  expiration  of  the  lease,  and  while  en- 
gaged in  repairing  the  mill,  he  caused  the  bridge 
and  platform  across  the  raceway  to  be  repaired,  and 
some  boards  were  laid  down  and  used  in  repairing 
the  same,  and  a  passage  way  to  the  gates  of  the 
raceway.  He  denies,  that  any  boards  or  plank 
were  laid  down,  except  as  aforesaid,  or  that  the  ap- 
praisers were  thereby  prevented  from  inspecting 
that  part.  He  further  admits,  that  part  of  the  ruuf 
leaked  in  several  places  ;  and  that  he  directed  small 
quantities  of  bran,  or  shorts,  to  be  placed  in  certain 
spots  or  places  on  the  floor,  under  the  roof  Win. re 
the  leak  was,  and  which  had  been  the  constant  prac- 
tice from  the  time  the  leaks  were  discovered,  to  ab- 
sorb the  water,  and  he  thinks  it  probable  there 
might  have  been  some  small  quantities  of  bran,  or 
shorts,  on  the  floor,  when  the  appraisers  were  there  ; 
and  he  denies  that  any  thing  of  this  kind  was  done 
to  conceal  the  real  situation  of  the  roof. 

This  is  a  plain  and  palpable  solution  of  the  mo- 
tives which  led  to  the  repairs,  from  which  sucli  a 
harsh  conclusion  has  been  drawn.  It  is  to  be  ob- 
served, that  neither  of  the  witnesses  charge  any 
fraudulent  design  in  the  repairs.  And,  certainly, 
the  inference  of  fraud  is  not  a  necessary  one,  and  it 
might  as  well  be  applied  to  any  repairs  whatever, 
made  near  the  termination  of  the  lease.  The  works 
were  still  open  to  public  inspection,  and  the  opposite 
party  might  have  seen,  and  known  of  all  such  re- 
pair?, at  the  time  of  the  examination.    They  were 


17 


before  their  eyes,  and  there  was  no  complaint  made 
at  the  time  by  the  inspectors,  or  the  opposite  party, 
or  their  agent,  of  any  impediment  therein,  in  the 
way  of  a  fair  and  full  inspection.  On  the  contrary, 
Mott  says,  that  the  inspectors  satisfactorily  examin- 
ed the  machinery  in  the  mill.  That  the  side  of  the 
cog-pit  was  boarded  up,  and  which  he  understood, 
at  the  time,  was  done  to  prevent  the  machinery  from 
being  injured  after  the  Underhills  had  ceased  to  use 
it.  That  he  and  Lydig  went  into  the  cog-pit  below, 
and  under  the  machinery,  and  viewed  the  machine- 
ry ;  that  there  was  a  bridge,  or  platform,  across  the 
raceway,  and  some  boards  laid  down,  but  nothing  to 
prevent  the  raceway  from  being  fully  examined,  and 
the  inspectors,  or  some  of  them,  did  inspect  the 
raceway,  as  well  as  that  part  where  the  bridge  and 
boards  were  laid,  as  in  the  other  part.  Lydig  gives, 
essentially,  the  same  statement.  And  it  would  be 
extremely  unjust  to  draw  the  conclusion  of  a  fraudu- 
lent concealment,  from  circumstances  susceptible  of 
so  easy  and  reasonable  an  explanation,  and  which 
were  at  the  time  within  the  view  and  knowledge  of 
the  appraisers  and  the  opposite  party,  and  which 
were  not  at  all  injurious,  for  they  did  not,  in  the 
judgment  of  the  arbitrators,  prevent  a  full  and  satis- 
factory inspection. 

The  only  grave  part  of  the  charge,  according  to 
the  testimony  of  the  two  Fowlers,  is  the  sprinkling 
of  meal  on  the  garret  floor,  to  hide  from  the  inspec- 
tors the  knowledge  that  that  part  of  the  roof  had 
leaked.  This  really  appears  to  me  to  be  too  trivial, 
and  too  improbable  a  story  to  deserve  notice.  It 

c 


18 


cannot  be  supposed  that  men  who  had  been  for 
many  years  in  great  and  enterprising  business,  and 
whose  characters  have  not,  in  any  degree,  been  as- 
sailed, should  have  resorted,  and  that  too  in  the 
very  presence  of  their  own  miller  and  his  son,  to  so 
mean  and  paltry  a  fraud,  merely  to  conceal  so  insig- 
nificant a  defect  as  a  leak  in  the  roof,  and  that  too 
for  the  purpose  of  enhancing  the  value  of  their  build- 
ings. But  the  proof  here  abundantly  repels  any  in- 
ference of  fraud.  Mott  and  Lydig  both  declare,  that 
when  they  were  in  the  garret  of  the  mill,  they  were 
informed  (and  one  of  them  says  it  was  by  the  Un- 
derbills) that  the  roof  leaked  in  some  places,  and 
their  attention  was  accordingly  drawn  to  the  cir- 
cumstance, and  they  saw  stains  on  the  floor,  but  no- 
thing to  prevent  it  from  being  sufficiently  and  satis- 
factorily examined.  Anderson  says,  he  also  under- 
stood at  the  time  that  the  roof  was  leaky,  and  he 
did  not  observe  that  meal  was  strewed  on  the  floor. 

6.  I  come  now  to  the  real  foundation  of  this  con- 
troversy, and  that  is  the  sum  at  which  the  mill  and 
its  appurtenances  have  been  valued.  The  other 
points  on  which  I  have  hitherto  dwelt,  have  been 
seized  upon  bv  the  dissatisfied  party,  rather,  I  pre- 
sume, as  auxiliary  to  the  great  object  of  opening  the 
award,  on  account  of  the  alleged  extravagance  cf 
the  valuation.  The  question  of  valuation  of  pro- 
perty is,  indeed,  one  on  which  it  is  almost  impossible 
to  give  satisfaction.  Men's  judgments  will  differ  ex- 
ceedingly on  this  fluctuating  subject.  Lord  Alvan- 
ley  has  observed,  "  that  valuers  differ  so  much,  that 


19 


it  is  not  very  wise  to  agree  to  sell  according  to  the 
valuation  of  any  one." 

My  impression  from  the  proof  is,  that  the  proper- 
ty here  was  considerably  over  valued  ;  and  I  have 
been  induced  to  study  the  case  with  more  than  or- 
dinary attention,  to  see  if  there  was  any  well  esta- 
blished fact  that  would,  upon  sound  principle,  justify 
me  in  interfering  with  the  award.  But  if  I  have 
been  unable  to  discover  any  such  sufficient  ground, 
it  is,  then,  my  indispensable  duty  to  adhere  to  the 
settled  doctrines  of  the  court,  rather  than  make 
them  bend  to  a  case  of  individual  hardship.  I  am 
no  more  at  liberty  than  any  other  court,  to  follow 
my  own  wishes,  in  opposition  to  general  principles ; 
nor  ought  I  to  give  undue  importance  to  small  cir- 
cumstances, or  exaggerate  trifles,  merely  to  aid  a  par- 
ticular case,  when,  in  any  other  case,  it  would  not  be 
permitted  ;  this  case,  like  all  others,  must  stand  or 
fall  upon  the  application  of  the  general  doctrines  of 
the  court. 

It  has  been  made  an  objection  to  the  damages 
awarded,  that  the  arbitrators  included  in  the  esti- 
mate of  the  value  of  the  mills,  the  value  of  the  right 
which  the  lessees  had  acquired  of  using  Evan's  pa- 
tent machinery  for  the  manufacturing  of  flour.  1 
cannot  perceive  any  objection  to  that  right  being  a 
subject  of  estimate.  The  arbitrators  were  to  ap- 
praise, not  only  the  mill,  but  whatever  might  ap- 
pertain thereto."  And  the  machinery  erected  in 
the  mill,  under  that  patent,  was  protected  by  it,  and 
the  right  of  using  it  was  an  appurtenant,  without 
which  the  machinery  might  have  been  useless.  That 


20 


right  must,  of  necessity,  pass  with  the  property  in 
the  mill,  and  whoever  succeeded  to  the  right  of  the 
mill,  took  the  machinery  with  it,  and  the  right  at- 
tached to  that  machinery.  The  right  was  so  far,  of 
course,  assignable.  It  belonged  to  that  machinery 
at  that  place,  whoever  might  be  the  occupier.  The 
right  must  have  that  construction,  and  there  is  no- 
thing appearing  in  the  case  to  show,  or  even  to  raise 
a  presumption,  that  the  license  was  useless,  or  of  no 
legal  validity.  The  machinery  was,  therefore,  pro- 
perly estimated,  as  it  then  existed,  that  is,  as  patent 
machinery. 

It  is  also  objected,  that  ti  e  timber  cut  down  and 
used  by  the  lessees,  in  the  buildings,  was  not  as- 
sessed and  deducted  from  the  value  of  the  mills  and 
other  works  ;  but  it  is  a  sufficient  answer  to  this, 
that  the  covenant  for  the  arbitration  did  not  extend 
to  any  other  subject  than  the  mills  and  their  appur- 
tenances. The  timber  was  to  be  deducted  from  the 
amount  of  the  appraisement,  and  not  to  form  a  part 
of  it.  The  deduction  was  to  be  made  by  the  parties 
after  the  amount  of  the  valuation  had  been  ascer- 
tained. Indeed,  the  Underhills  assert,  that  it  was 
proposed  by  them  that  the  appraisers  should,  at  the 
same  time,  include  the  timber  used  by  them,  and  that 
the  proposition  was  rejected  by  the  other  party. 
Whether  this  were  so  or  not,  it  was  at  least  the 
duty  of  the  Van  Cortlandts  to  have  tendered  proof 
on  that  point  to  the  appraisers,  if  they  wished  that 
the  timber  should  have  been  assessed  at  the  same 
time;  the  subject  was  totally  waived  by  them- 
selves. 


21 


Another  objection  has  been  raised  against  the 
mode  of  the  assessment,  inasmuch  as  the  appraisers 
did  not,  in  their  deliberations,  assess  each  particular 
article  in  the  mill,  and  its  appurtenances,  separately. 
But  this  was  a  matter  resting  in  the  discretion  of  the 
arbitrators.  There  was  no  rule  of  that  kind  prescri- 
bed for  them,  and  their  judgments  were  left  free  to 
adopt  such  mode  or  manner  of  valuation  as  would, 
in  their  opinion,  lead  to  a  satisfactory  result.  In 
fact,  the  two  appraisers,  Mott  and  Lydig,  both  de- 
clare, in  their  answers  to  the  charge  of  this  kind,  that 
they  did  separately  value  the  items  of  the  property 
under  appraisement  which  were  of  any  magnitude 
and  importance,  and  sufficiently  so,  to  form  a  correct 
and  just  estimate  of  the  whole.  In  the  case  of  Dick 
v.  Milligan,  (2  Vesey,  jun.  23.  4  Bro.  117.)  the 
same  objection  was  taken.  The  arbitrators  award- 
ed a  general  balance,  but  did  not  set  forth  particular 
items,  allowed  and  disallowed,  and  the  court  say  it 
was  not  necessary  that  the  arbitrators  should  set 
forth  a  schedule  of  particulars,  and  state  all  the  items 
of  an  account.  If  done,  it  would  come  to  nothing,  with 
regard  to  any  thing  the  court,  could  do.  If  they  con- 
sidered them  sufficiently  to  determine  the  result,  all 
was  done  that  was  necessary.  The  matter  rested 
with  them,  and  their  judgment  was  conclusive. 

Much  testimony  has  been  taken,  to  prove  that  the 
mill  was  greatly  over  valued  I  shall  not  enter 
into  the  discussion  of  that  part  of  the  proof.  Every 
other  point  has  been  considered  with  all  possible  in- 
dulgence ;  and  even  so  much  so,  that  a  good  deal  of 
testimony  has  been  read  and  considered,  which,  upon 


22 


strict  rules,  and  even  upon  principles  of  policy  and 
justice,  ought  to  have  been  suppressed.  But  here, 
I  think,  the  settled  decisions  of  the  court  interpose 
an  insuperable  obstacle  to  the  investigation  of  the 
question  respecting  the  measure  of  valuation.  Ad- 
mitting, that  there  was  no  corruption  or  partiality  in 
the  arbitrators,  (and  none  is  pretended,)  and  admit- 
ting that  there  was  no  misconduct  in  them  during  the 
course  of  the  trial,  nor  of  fraud  in  the  opposite  par- 
ty, (and  none  is  established  by  proof,)  then  I  say, 
that  the  court  cannot  inquire  into  the  charge  of  an 
over,  or  under,  valuation,  or  of  the  reasonableness 
or  unreasonableness  of  the  award,  but  the  same  is 
binding  and  conclusive.  If  every  award  must  be 
made  conformable  to  what  would  have  been  the 
judgment  of  this  court  in  the  case,  it  would  render 
arbitrations  useless  and  vexatious,  and  a  source  of 
great  litigation,  for  it  very  rarely  happens  that  both 
parties  are  satisfied.  The  decision,  by  arbitration, 
is  the  decision  of  a  tribunal  of  the  parties'  own  choice 
and  erection.  It  is  a  popular,  cheap,  conversant, 
and  domestic  mode  of  trial,  which  the  country  have 
always  regarded  with  liberal  indulgence,  and  have 
never  exacted  from  those  unlettered  tribunals,  this 
rusticum  forum,  the  observance  of  technical  rule  and 
formality.  They  have  only  looked  to  see  if  the 
proceedings  were  honestly  and  fairly  conducted  ; 
and  if  that  appeared  to  be  the  case,  they  have  uni- 
formly and  universally  refused  to  interfere  with  the 
judgment  of  the  arbitrators. 

To  show  I  am  not  mistaken  on  this  point,  it  will 
be  useful  to  review  the  cases. 


23 


In  Greenhill  v.  Church,  (3  Rep,  in  Ch.  49.)  a  bill 
was  filed  to  be  relieved  against  an  award.  The 
court  declared,  that  they  would  neither  confirm  nor 
overthrow  such  awards,  unless  circumvention  or  cor- 
ruption were  proved.  This  was  as  early  as  1635. 
And  in  Cavendish's  case,  which  was  before  Lord 
Nottingham,  (1  Cas.  in  Ch.  279.)  he  declared,  that 
if  parties,  without  the  court,  refer  their  differences, 
they  choose  their  own  judges,  and  this  court  would 
not  relieve  against  an  award,  unless  for  corruption, 
going  beyond  authority,  or  the  like. 

The  next  case  that  I  shall  notice,  was  that  of 
Brown  v.  Brown,  in  1683,  (1  Vern.  157.  2  Ch.  Cas. 
140.)  which  underwent  a  full  discussion.  A  tenant 
for  life  suffered  some  mills  and  houses,  of  the  value 
of  70/.  per  annum,  to  go  to  decay,  and  it  was  com- 
puted the  reparations  would  cost  380/. ;  the  remain- 
der-man brought  an  action  of  waste,  and  the  parties 
agreeing  to  an  arbitration,  it  was  by  covenant  made 
a  rule  of  court;  but  pending  the  arbitration,  the  te- 
nant repaired  the  waste,  and  forbid  the  arbitrators 
and  umpire  to  proceed.  The  umpire,  notwithstand- 
ing, awarded,  that  the  tenant  should  pay  380/.  The 
bill  was  brought  to  be  relieved  against  this  award, 
for  the  excessiveness  of  the  damages,  and  for  misbe- 
haviour of  the  umpire.  The  damages  were  charged 
to  be  outrageous,  as  the  repairs  made  good  the  de- 
cay within  40s.  before  the  award,  and  the  umpire 
had  viewed  them.  Sergeant  Maynard  opposed  the 
bill,  on  the  ground,  that  fraud  or  collusion  was  ne- 
cessary to  avoid  an  award  in  equity ;  and  that  if 
awards  could  be  set  aside  on  slight  pretences,  they 


24 


might  as  well  strike  that  title  out  of  the  books.  The 
Lord  Keeper  North  was  of  that  opinion,  anil  dis- 
missed the  bill,  though  he  admitted  that  the  380/. 
was  near  the  value,  in  that  case,  of  the  estate  for  life. 
He  said,  that  chancery,  in  some  cases,  relieves 
against  manifest  error  in  the  body  of  the  award,  but 
where  the  error  does  not  appear  without  unravelling 
it,  he  thought  it  was  not  relievable.  In  the  case  of 
Earlv.  Stocker,  a  very  few  years  after,  (2  Vern.  151. 
Hil.  Ib9l.)  the  court  set  aside  an  award,  on  one  of 
the  excepted  grounds,  of  interest  and  corruption  in 
the  arbitrators;  and  cases  within  the  reach  of  the 
exception  were  referred  to,  as  that  of  Pitt  v.  Daw- 
bra,  |where  the  arbitrators  had  promised  to  hear 
witnesses,  and  had  made  their  award  without  havii  g 
heard  them  ;  and  the  Butcher  of  Croydon's  case  was 
also  referred  to,  in  which  the  arbitrator  was  not  in- 
different between  the  parties.  In  all  these  cases  the 
award  was  set  aside,  on  the  ground  of  misconduct, 
partiality,  or  corruption,  and  not  on  the  ground  of 
error  or  mistake  ;  and  in  Croydon's  case,  the  Lord 
Keeper  declared,  that  he  did  proceed  barely  because 
the  damages  were  excessive,  though  the  award,  as  it 
is  stated  in  1  Vern.  Ift7.  was  for  300/.  which  was  an 
enormous  sum  for  that  day,  and  was  merely  to  repair, 
as  the  award  expressed  it,  the  honour  of  a  man  who 
was  called  a  bankrupt  knave. 

It  would  be  difficult  to  find  cases  stronger  than 
those  early  ones,  in  favour  of  the  binding  nature  of 
awards,  when  honestly  and  fairly  procured.  In 
Waller  v.  King,  (9  Mod.  63.)  the  bill  was  to  set 
aside  an  award  for  a  palpable  excess  of  damages; 


25 


for  the  plaintiffs  had  ^oods  of  the  defendant  to  7/. 
10s.  only,  and  yet  he  was  awarded  to  pay  3b/.  Lord 
Macclesfield,  who  was  then  chancellor,  said  he 
would  not  set  aside  the  award  upon  account  of  any 
hardship  therein,  because  the  arbitrators  were 
judges  of  the  parties'  own  choosing.  A  variety  of 
cases  to  the  same  effect  were  decided  during  the 
time  of  Lord  Hardwicke.  He  declared,  repeatedly, 
that  a  bill  to  set  aside  an  award  must  be  founded 
upon  the  fraud,  corruption,  or  misbehaviour  of  the 
arbitrators ;  that  they  were  judges  of  the  parties' 
own  choosing,  and,  therefore,  they  could  not  object 
against  the  award  as  an  unreasonable  judgment ; 
and  that,  whether  it  was  rightfully  or  wrongfully 
determined,  the  parties  were  bound  by  it ;  and  there 
could  be  no  end  to  controversies  if  it  were  other- 
wise. This  was  his  language  in  the  cases  of  Ives  v. 
Metcalf,  (1  Atk.  63.)  Longwood  v.  Eade,  (2  Atk. 
504.)  Ridout  v.  Pain,  (3  Atk.  494.  1  Vesey,  1 1 .) 
Tittensen  v.  Peat,  (3  Atk.  529.)  and  in  other  cases 
to  which  I  might  refer.  The  exceptions,  or  qualifi- 
cations, to  this  rule,  are  mentioned  also  in  those  de- 
cisions of  Lord  Hardwicke;  as  for  instance,  where 
the  arbitrators  made  the  award  clandestinely,  with- 
out hearing  each  party,  or  where  one  of  the  parties 
had  himself  made  use  of  fraud  to  mislead  the  arbi- 
trators. Indeed,  the  cases  uniformly,  and  necessa- 
rily, allow  of  relief,  where  this  misconduct  in  the 
arbitrators,  or  this  lraud  in  the  party,  be  made  to 
appear.  (Spctligue  v.  Carpenter,  3  P.  Writs.  36 i. 
South  Sea  Company  v.  Bu^^ad,  3  Viner,  139.  pi. 

J* 


26 


39.    2  Eq.  Cos.  Abr.  80.  pi.  8.    Burton  v.  Knight, 

2  Fern.  514.) 

Lord  Hardwicke  was  also  disposed  to  extend  re 
lief  to  cases  of  palpable  mistake,  as  in  the  instance  of 
a  miscalculation  taken  in  an  account,  or  of  a  mistake 
in  a  plain  point  of  law  ;  and  he  relied  on  a  decision  of 
Lord  Cowper,  to  which  he  referred,  (Ridout  v.  Pain, 
sup  anon.  3  jllk.  b  14.  Cmnt forth  v.  Gier,  2  Vern, 
70 ,'.)  The  mistake  intended  by  these  cases,  is  a 
mistake  as  to  figures,  or  of  one  thing,  or  fact,  for 
another,  and  dor.-s  not  mean  or  apply  to  error  of 
judgment)  in  it&  fair  exercise  upon  a  subject.  Thus, 
in  the  subsequent  case  of  Knox  v.  Simmonds,  (J  Ve- 
scy,]u\\  ;Ui9.)  Lord  Thurlow  observed,  that  a  party 
to  an  award  cannot  come  to  have  it  set  aside,  upon 
the  simple  ground  of  erroneous  judgment  in  the  ar- 
bitrator. For,  to  this  judgment  they  refer  their 
disputes,  and  that  would  be  a  ground  for  setting 
aside  every  award  ;  there  must  be  something  more, 
as  corruption  or  gross  mistake,  either  apparent  upon 
the  face  of  the  award,  or  to  be  made  out  by  evi- 
dence, and  in  case  of  mistake,  it  must  be  made  out  to 
the  satisfaction  of  the  arbitrator.  This  was  done  in 
the  case  of  Cnampion  v.  Warham,  {Arab.  245.) 
where  the  arbitrators  confessed  a  mistake  in  two 
sums,  which  turned  the  balance  of  the  account,  and 
the  award  was  so  far  corrected. 

The  general  doctrine  on  this  subject  is  laid  down 
in  the  most  clear  and  explicit  terms,  by  those  of  the 
judges  or  courts  of  law,  while  they  held  the 
great  seal  as  commissioners.  I  allude  to  Lord  Ch. 
J.  Eyre,  and  to  the  judge*  Ashurst  and  Wilson,  in  the 


case  of  Morgan  v.  Mather,  (2  Vesey,  jun.  15.)  In 
this  case,  they  observed,  that  it  would  be  a  melan- 
choly thing  to  set  a-.;de  an  award  on  matter  of  fact, 
because  we  differed  from  the  arbitrators  in  judg- 
ment.  It  is  their  province  to  decide  facts.  The 
court  does  not  take  upon  itself  to  inquire,  whether 
arbitrators  have  judged  right  or  wrong  upon  facts. 
The  only  grounds  to  set  aside  an  award,  are,  1. 
That  the  arbitrators  have  awarded  what  was  out  of 
their  power,  as  if  they  award  contrary  to  law  ; 
2.  Corruption,  or  that  they  have  proceeded  contrary 
to  the  principles  of  natural  justice,  though  there  be 
no  corruption,  as  if  without  reason  they  will  not  hear 
a  witness  ;  3.  That  they  have  proceeded  upon  a 
mere  mistake,  which  they  themselves  admit. 

This  case  was  afterwards  brought  up  for  rehear- 
ing before  Lord  Loughborough,  and  he  observed, 
that  "  all  the  arguments  of  the  counsel  was  upon 
error  and  mistake,  and  they  had  not  stated  corrup- 
tion, misbehaviour,  or  excess  of  power,  which  were 
the  only  three  grounds  for  setting  aside  awards.  If 
parties  agree  to  refer  matiers  to  judges  of  their  own 
choice,  this  court  cannot  correct  the  error  of  their 
judgment  upon  facts. 

The  observation  of  Lord  Alvanley,  some  years 
afterwards,  in  the  case  of  Ernoy  v.  Wase,  (5  Vescy, 
846.)  Was  equally  strong  and  emphatical.  He  said, 
that  arbitrators  chosen  by  the  parties,  ever  had,  and 
he  hoped  ever  would  have,  both  at  law  a>>J  it'  equi- 
ty, an  authority,  so  that  the  »vvard  should  not  be 
overhauled,  unless  upon  fraud,  imposition,  or  gross 
mistake.    Indeed,  the  law  is  understood  to  be  so 


28 


well  settled  on  this  subject,  that  during  the  time  of 
Lord  Elden,  the  question  as  to  the  power  of  relief 
against  the  mistaken  judgment  of  arbitrators,  seems 
to  have  been  entirely  at  rest,  and  the  cases  which 
have  occurred  before  him,  have  only  related  to  the 
means  of  excluding  all  partiality,  unfair  proceedings, 
and  undue  influence,  from  affecting  the  decision  of 
the  arbitrator.  (  Walker  v.  Ferbishcr*  6  Vesey,  70. 
9  Vcsey,  68.  &.  C.  Tclherstone  v.  Cooper,  9  Vcsey, 
67.) 

In  finishing  this  review  of  the  most  material  chan- 
eery  decisions,  on  awards,  I  think  we  may  safely 
conclude,  that  the  law  is  as  well  settled  on  this  as 
on  any  other  subject  whatever.  The  conclusiveness 
of  the  judgment  of  arbitrators,  has  received  the  uni- 
form sanction  of  the  court  for  a  series  of  ages.  The 
rule  is  not  now  to  be  shaken  or  disturbed,  and  is 
founded  in  so  much  reason  and  public  convenience, 
as  not  to  be  confined  merely  to  the  court  of  chance- 
ry, but  to  have  met  with  the  general  approbation  of 
mankind. 

The  courts  of  law  have  always  been  averse  to 
granting  any  relief  in  these  cases,  and  the  injured 
party  wa-  obliged  to  resort  to  equity.  In  an  action 
at  law,  on  an  award,  even  the  corruption  or  miscon- 
duct of  the  arbitrators  is  no  defence.  (2  Wilson, 
118.  3  Johns.  Rep.  367.  U  East,  344.)  And  where 
submission  to  arbitration  had  been  made  a  rule  of 
court  ol  R.  B  and  the  arbitrators  were  charged  with 
mismanagement  in  refiis^a;  t0  hear  one  party,  Lord 
Holt  made  it  a  question,  whether  the  integrity  of  the 
arbitrators  could  be  arraigned.   (Morris  v.  Reynolds, 


29 


2  Ld.  Raym.  8.r)7. )  In  this  he  was  properly  over- 
ruled ;  but  it  appears  to  be  settled,  that  a  court  of  law 
will  not,  even  where  the  submission  is  made  a  fule  of 
court,  enter  into  the  merits  of  an  award,  but  will 
look  only  to  legal  objections  on  the  face  of  it,  or 
such  as  sro  to  the  misbehaviour  of  the  arbitrators. 
{Lucas  v.  Wilson,  2  Burr.  701.  Chacc  v.  Westmore, 
13  East,  357.)  The  statute  of  9  and  10  W.  HI.  c. 
I  ft.  and  which  was  adopted  by  this  state  in  1791, 
allowing  submission  to  arbitrators  to  be  made  a  rule 
of  court,  and  to  be  enforced  by  attachment,  provided 
for  relief,  in  the  special  case  in  vrhich  the  award 
shall  have  been  procured  by  corruption  or  undue 
means.  The  statute  contains  the  legislative  t  :nse 
of  the  final  nature  of  awards,  except  the  specified 
case.  But  though  the  relief  be  as  much  limited  at 
law  as  under  the  statute,  as  it  has  been  in  this  court, 
yet  it  was  not,  as  has  been  suggested,  from  any  dis- 
position to  discourage  this  cheap  and  speedy  mode 
of  settling  disputes.  In  Hawkins  v.  Colc/ough,  (1 
Burr.  27  1  )  Lord  Mansfield  declared,  that  awards 
were  considered  with  greater  latitude  and  less  strict- 
ness than  formerly,  and  it  was  right  they  should  be 
liberally  construed,  because  they  were  made  by 
judges  of  the  parties'  own  choosing. 

The  English  law  on  the  subject  of  awards  has,  I 
apprehend,  been  adopted  very  universally  in  this 
country.  In  Parker  v.  Avery,  (Kirby,  353.)  der^d 
in  Connecticut  soon  after  the  revo'i"'-"J»  it  was  de- 
clared by  the  court,  to  be  unprecedented  there,  to 
go  into  the  merits  of  an  award  ;  and  that  the  rea- 
sonableness or  unreasonableness  of  it  did  not  affect 


30 


its  validity,  so  that  there  be  no  misbehaviour  or  cor- 
ruption in  the  arbitrators.  The  same  rule  prevails 
in  South  Carolina,  as  appears  from  the  case  of  Mid- 
den v.  Cravnl,  (2  Biy,  370  )  The  judges  all  agreed 
that  too  easv  an  ear  oujjht  not  to  be  lent  to  com- 
plainants,  against  awards  made  bj  judges  of  the 
parties'  own  choosing,  and  who  possess  all  the  power 
of  courts  of  law  and  equity  in  the  given  case.  They 
6aid.  that  the  great  principle  laid  down  by  Lord 
Hardwicke  was  the  best  general  rule  which  could 
be  adopted  ;  and  which  was,  that  the  only  ground  to 
impeach  an  award,  was  corruption  or  great  misbe- 
haviour in  the  arbitrators,  and  to  which  they  thought 
might  be  added  gross  mistake,  or  palpable  error, 
though  the  explanation  on  that  point  was  not  fully 
given.  The  same  rule  has  been  repeatedly  laid 
down  in  the  courts  in  Virginia.  The  reason  for 
setting  aside  an  award,  according  to  the  cases  there, 
must  appear  on  the  very  face  of  it,  or  there  must  be 
misbehaviour  in  the  arbitrators,  or  some  palpable 
mistake.  (1  Washington,  14.  158.  2  Hen  8,-Mitnf. 
408.)  Nor  is  this  general  doctrine  peculiar  to  the 
English  law,  or  to  the  courts  in  this  country,  which 
have  followed  its  jurisprudence.  The  distinction 
between  awards  and  forensic  judgments,  the  short, 
precise  rules  of  the  one,  and  the  liberal  equity  and 
compiomised  terms  of  the  other,  are  strikingly  con- 
trasted in  one  of  Cicero's  orations.  (P/-o.  Q.  Roscio 
Comedo,  4.")  Rut  if  we  resort  to  the  authoritative 
text  of  the  civil  law,  »T«  chHll  find  the  principle  of 
the  conclusiveness  of  awards  as  strongly  laid  down 
as  it  is  in  any  of  the  English  decisions.    Start  autem 


31 


debet  senlentio  arbitri  quam  de  re  dixerit,  sive  ccqua, 
sive  iniqua  sit,  et  sibi  imputet  qui  compromisit.  {Dig. 
4.  8.  27.  2.)  The  Piaetor  would  nut  interfere  with 
the  decisions  of  these  domestic  tribunals,  for  the 
very  reasons  which  have  been  adopted  in  modern 
times,  because  they  put  an  end  to  suits,  and  were  of 
the  parties'  own  choice.  Tametsi  neminem  Prcetor 
covit  arbitrium  recipere,  attamen  ubi  semcl  quis  in  se 
receperit  arbitrium,  ad  cur  am  et  solicituJinem  suam  hanc 
rem  pertinere  Prcetor  putet :  non  tantum,  quod  studeret 
lites  jinire,  verum  quoniam  non  deberent  decipi,  qui  enm, 
quasi  bonum  virum  disceptatorem  inter  se  elegerunt. 
{Dig.  4.  8.  3.  1.)  But  the  civil  law  afforded  a  re- 
medy against  the  award,  if  it  was  procured  by  fraud 
and  corruption,  posse  eum  uti  doli  mali  exceptione. 
{Dig.  4.  8.  3.  1.)  The  observation  of  one  of  the 
civilians  under  this  title,  lays  down  with  precision, 
the  rule  and  the  exception,  the  conclusiveness  of  the 
award,  with  the  exception  of  fraud  in  the  arbitrator, 
or  in  the  party.  Partes  aut  stare  debent  sententia  sive 
aqua,  sive  iniqua  sit,  nisi  Dolus  Partium  aut  arbitrorum 
arguatur.  {Hub.  lib.  4.  tit.  8.  sect.  7.)  I  will  dwell 
no  longer  on  this  subject,  than  merely  to  refer  to  a 
case  stated  in  the  Institutes,  which  is  very  much  in 
point.  If  it  be  agreed,  that  a  thing  be  sold  at  a 
price  to  be  fixed  by  a  third  person,  quanti  die  a:stima- 
verit,  the  agreement  is  valid,  and  the  price  fixed  by 
the  arbitrator  must  be  paid.  {Inst.  3.  24.  1.)  But 
Vinnius,  in  his  commentary  on  this  passage,  qualifies 
the  award  with  this  exception.  etiamsi  Tituis 

arhiirainr  tmdtn  ifwfy— ****  minoris  rem  astirnavcrit 
quam  valet,  diccndum  est  valere  contraclum.    Sane  si 


\ 


.'32 


arbitrxum  Titii  tarn  pravum  est  ut  manifesta  ejus  ini- 
quilas  apparcal  consenticns  fere  omnium  opinio  est  ar- 
bitrio  boni  viri  iniquitatem  corrigi  posse.  The  case 
here  stated  is  the  very  one  we  are  considering. 
The  parties  choose  arbitrators  to  fix  the  price  of  the 
mill,  and  they  must  abide  by  the  price  declared,  be 
it  too  high  or  too  low,  unless  fraud  can  be  shown. 
This  award  would  be  declared  binding-  by  Vinnius, 
sitting  under  the  civil  law ;  and  it  must  be  equally 
60  declared  under  the  law  of  this  country. 

Before  I  conclude,  I  ought  to  take  notice  of  an  ob- 
jection that  was  raised  to  the  jurisdiction  of  the 
court.    It  is  said,  that  the  Underhills  ought  to  have 
pursued  at  law  their  remedy  upon  the  award,  as  it 
was  simply  for  the  payment  of  money,  and  no  ac- 
count is  sought  or  called  for.    To  this  it  is  answer- 
ed, that  the  omission  of  the  complainants,  in  the 
original  suit,  to  sign  the  lease,  was  a  mistake  that 
rendered  it  necessary  to  seek  their  relief  here;  and 
that  their  right  arises  partly  as  assignees  of  a  chose 
in  action,  on  which  they  could  not  have  had  a  suit  at 
law  in  their  own  names.    These  reasons  are,  pro- 
bably, of  themselves  sufficient,  but  at  any  rate,  by 
answering  in  chief  instead  of  demurring,  the  defend- 
ants submitted  the  cause  to  the  cognizance  of  this 
court,  and  they  come  too  late,  at  the  hearing  on  the 
merits,  to  raise  the  objection.    It  would  be  an  abuse 
of  justice  if  the  defendants  were  to  be  permitted  to 
protract  a  litigation,  to  the  extent,  and  with  the  ex- 
pense that  th's  W  been  ;  and  then,  at  the  final  hear- 
ing, interpose  with  this  pitV^u^ry  objection ;  and 
such  appeared  to  be  the  opinion  of  a  majority  of  the 


33 


court  of  errors,  in  the  case  of  Ludlow  v.  Simond,  (2 
Caines  in  Error,  p.  40.  5b.) 

I  shall,  accordingly,  decree,  that  the  plaintiffs  in 
the  original  suit  recover  the  sum  awarded,  and  that 
there  be  a  reference  to  the  master,  to  take  an  ac- 
count of  the  value  of  the  timber,  as  it  was  when 
standing,  which  was  cut  on  the  premises  and  appro- 
priated towards  building  the  mill,  and  its  appurte- 
nances, according  to  the  provision  in  the  lease  ;  and, 
also,  to  take  an  account  of  the  assets,  real  and  per- 
sonal, of  the  estate  of  Pierre  Van  Cortlandt,  de- 
ceased, and  which  came  to  the  hands  of  the  defend- 
ants, as  his  representatives ;  and  that  all  further 
questions  be  reserved  until  the  coming  in  of  the 
report. 

Before  I  close,  I  must  briefly  observe  upon  a  re- 
cent occurrence  in  this  case.  As  the  opinion  was 
about  to  be  delivered,  on  the  20th  inst.  the  counsel 
for  the  defendants  in  the  original  suit,  presented  a 
petition,  in  which  they  offered,  in  lieu  of  the  sum 
awarded,  to  release,  in  fee,  to  the  plaintiffs,  the  pre- 
mises, together  with  such  quantity  of  adjacent  land 
as  the  court  should  deem  reasonable  and  requisite,  to 
the  full  enjoyment  of  the  mills,  &x.  This  proposi- 
tion was  altogether  distinct  from  the  controversy  be- 
fore me,  and  was  not  contained  in  the  pleadings  or 
proofs,  or  suggested  upon  the  argument ;  and  I  do 
not  feci  myself  authorized  to  act  upon  it,  any  further 
than  to  suspend  the  decree  until  the  counsel  for  the 
plaintiffs  had  communicated  the  proposition  to  their 
clients,  and  obtained  their  answer.  That  answer 
is  now  received,  and  the  offer  is  declined,  for  reasons 

E 


34 


which  are  therein  mentioned,  and  with  which  I  have 
nothing  to  do.  Whatever  my  opinion,  or  wishes 
may  be,  I  consider  that  terms  of  accommodation  rest 
exclusively  with  the  parties.  If  the  proposition  had 
been  made  in  the  first  instance,  at  the  publication  of 
the  award,  and  had  been  inserted  in  the  pleadings, 
it  would  have  been  regularly  before  me  as  part  of 
the  case,  but  it  comes  too  late,  and  at  the  very  close 
of  the  controversy.  I  must  decide  the  cause  upon 
the  pleadings  and  proofs. 


f 


